Hehir on Election spending

July 28th, 2014 at 11:00 am by David Farrar

Liam Hehir writes in the Manawatu Standard:

Since then we’ve seen plenty of further evidence against the idea that the rich can spend their way to power.

Republican Meg Whitman provided a spectacular example of this in 2008. She spent more than $US144 million (NZ$165m) of her own money chasing the California governorship. She was trounced.

In our last general election, the Conservatives spent a whopping $1.8m, which was more than Labour spent. For that expenditure, they received just 2.65 per cent of the vote – which works out to $31.71 a head. Three years later and even more money down the drain, that party is not polling any better.

Don’t get me wrong, money is required to get your message out. What is pretty clear, however, is that diminishing returns set in fairly rapidly. There are lots of studies showing this. The University of Chicago’s Steve Levitt – who also co-authored the popular Freakonomics – has observed that: “When a candidate doubled their spending . . . they only got an extra 1 per cent of the popular vote. It’s the same if you cut your spending in half, you only lose 1 per cent of the popular vote.”

It has some impact, but not a huge amount. Dotcom’s millions might get Mana-Internet from 1.1% to say 3.0%. However the free publicity from the media reporting his every tweet is probably worth far more to them.

National came to power and quickly repealed the Electoral Finance Act. To its credit, a chastened Labour Party did not stand in its way. Unfortunately, however, many of the restrictions and bureaucratic hurdles on third party campaigns were retained.

Greenpeace learned this recently after the Electoral Commission ruled that a website the lobbyists had set up to attack Energy Minister Simon Bridges was subject to electoral law restraints.

The commission also ruled that another campaign Greenpeace is involved in around climate change would also constitute an election advertisement and so was subject to the law. That interpretation is now to be the subject of court proceedings.

I sincerely wish them the best of luck. Ultimately, however, we should look to repeal the offensive provisions through Parliament.

Yes, I’d repeal all the third party spending restrictions except the need to identify the publisher.

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Geddis on Banks

June 8th, 2014 at 12:00 pm by David Farrar

Andrew Geddis blogs:

I’m conflicted about how outraged I should be at Banks’ actions. Yes, Banks is guilty of deliberately trying to hide from the world the identity of donors to his campaign that (for whatever reason) he thought might prove embarrasing down the track. This is a bad thing for politicians at any level to do. However, Banks’ opponent at the relevant mayoral election was also busy hiding from the world the identity of those who funded his campaign … he just did it more cleverly by utilising a trust as a conduit. So is the real issue here that Banks just didn’t obey the letter rather than the spirit of the law?

Banks broke the law, and that is not something to be minimised. However as Geddis points out the impact of his actions is no different to what Len Brown did. They both hid donations – just that Brown used a trust to avoid disclosure (which was legal) and Banks did not.

Fourth, it is true that Banks only has to leave Parliament if he gets convicted of the offence he is guilty of (conviction and guilt are not the same thing). But I really, really hope he doesn’t get discharged without conviction – New Zealand has a terrible record of pursuing and punishing electoral offences (the police still haven’t actioned a bunch of complaints from the last election campaign!), and so to (effectively) let off an MP for breaching electoral law would reinforce the message that these sorts of rules really don’t matter. Furthermore, the honourable thing for Banks to do would be to resign now … it’s a bad look for Parliament as an institution to have an MP guilty of an offence that should see him thrown out hanging on in the hope that a court will spare him that indignity. By all means Banks should carry on trying to clear his name with appeals and the like, but he won’t be doing the institution any favours if he insists on his right to remain.

If Banks doesn’t resign, but is convicted, we then have the issue of what happens is his seat is vacated. Here’s the time-frame.

  • 31 July – last House sitting day
  • 1 August – sentencing of Banks
  • 3 August – deadline for Registrar to notify the Speaker of conviction
  • 4 August – vacancy declared in Gazette
  • 14 August – Parliament dissolved
  • 20 August – Writ Day for general election
  • 25 August – deadline for Governor-General to issue writ for a by-election

The media have said that if Banks is convicted on 1 August, then Parliament would need to reconvene to decide not to hold the by-election. I’m not sure that would be necessary, even though it would remove doubt.

S129(4) of the Electoral Act says no by-election is needed for a vacancy that occurs after Parliament is dissolved or expires. Now the vacancy would occur before the dissolution, but the writ would not have to be issued until after the writs for the general election has been issued.

I think electoral officials could use discretion to decide that a general election writ for Epsom supercedes a by-election writ for Epsom, and not to hold the by-election eve if Parliament didn’t vote not to have it. The by-election would not be held before the general election and would be of no consequence.

So if Banks does not resign (which seems unlikely), and is convicted on 1 August, it may not be necessary for Parliament to reconvene to vote not to have a by-election. If the Government just delays the writ until after the writ for the general election, I’d say common sense would see prevail. I can’t see a Judge ever ruling that the Electoral Commission must run a by-election after the general election writs have been issue.

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Banks found guilty

June 5th, 2014 at 2:28 pm by David Farrar

One News reports:

John Banks has been found guilty of knowingly filing a false electoral return after his failed Auckland mayoral campaign in 2010. …

Banks faces a jail sentence of up to two years or a $10,000 fine.

He won’t get a jail sentence, but unless he is discharged without conviction, he will lose his seat in Parliament.

S55(1)(d) of the Electoral Act states:

The seat of any member of Parliament shall become vacant if he or she is convicted of an offence punishable by imprisonment for life or by 2 or more years’ imprisonment

The Speaker will declare his seat vacant once he receives the judgment.

S131(a) also states:

Notwithstanding anything in section 129, no writ shall be issued for a by-election to supply a vacancy in the House of Representatives if the vacancy arises in the period of 6 months ending with the date of the expiration of the Parliament and a resolution that a writ not be issued to supply the vacancy is passed by a majority of 75% of all the members of the House of Representatives

I expect a motion to this effect will be moved on the next House sitting day (Tuesday) and after a two hour or so debate, passed.

It will mean that the Government will only have 60 out of 120 seats for the remainder of its term and will be unable to pass laws without the support of the Maori Party or some other party or MP.

A very sad way for John Banks to end his political career, but a lesson for all politicians to take the utmost care when doing donation returns – and err on the side of transparency.

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Cunliffe pledges to change electoral law under urgency with no consensus

June 4th, 2014 at 8:30 am by David Farrar

In Firstline this morning David Cunliffe said that Labour will amend the Electoral Act within 100 days of office, to remove the one seat electorate threshold in MMP.

This is absolutely appalling. A Government that will ram through major electoral law changes under urgency, probably with no select committee hearings, and without consensus, is dangerous. Labour have form for this.

It doesn’t matter that I agree that the one seat threshold should go (and submitted that way). That is not the point.

The Electoral Act is not the ultimate winner take all prize for the Government of the day.

National has bent over backwards to only make major electoral law changes which have broad parliamentary support. They even agreed to keep third party spending limits, to keep Labour and Greens happy.

The last thing we want is a Government promising to unilaterally change the Electoral Act under urgency within 100 days of an election. Any changes should go through a full select committee process at a minimum. The precedent this would set is horrific. It means any future Government can ram through changes to the Electoral Act under urgency after an election to try and help them stay in power.

Also note the timing. Labour will be quite happy to have the Mana Dotcom Alliance use the one seat threshold to help make them the Government. It’s only after the election they’ll turn their noses up at it.

UPDATE: Further reports do not make it clear whether Labour is pledging to pass the law within 100 days, or introduce it within 100 days.

Regardless no party should be declaring they will change such a major aspect of electoral law (it would have probably changed the result of the 2008 election and given Labour a 4th term) unilaterally. It is quite appropriate for parties to state their positions and ask people not vote vote for parties that have a different position. The way to remove the one seat threshold is to place pressure on all the parties (or at least the major ones) to support a change, or risk being punished by the voters. But in the absence of an agreement, a Government should not use a bare majority to tilt the Electoral Act in its favour (and make Parliament less proportional). You do what National did with the Electoral Finance Act – work with other parties on the replacement law, and compromise when necessary.

If Labour can change the Electoral Act unilaterally after the election to try and wipe out smaller parties, then how could you argue against National changing the Electoral Act to move the threshold to say 10% to wipe out the Greens?

You really really do not want to go down the path of a Government making major changes (and this is really major) to the Electoral Act without broad parliamentary support.

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Geddis on Internet Party selections

March 31st, 2014 at 12:00 pm by David Farrar

Andrew Geddis blogs on the issue of whether the Internet Party’s selection rules comply with the obligation in the Electoral Act for them to be democratic. He first points out that regardless of the rules, they can get registered:

There are two separate points here. The first is whether the Internet Party’s rules governing candidate selection are consistent with the Electoral Act’s requirement that parties use “democratic processes” when choosing who will stand under their banner. The second is whether that first question is at all relevant to the Party gettting registered. I’ll answer them in reverse order. …

One is that this obligation applies to registered parties. In other words, for it to kick in, the party already must be registered with the Commission. (In fact, a party doesn’t have to have any rules at allbefore being registered, as it is only required to provide the Commission with a copy of the party’s rules a month afterregistration.) And when it comes to the Commission carrying out the party registration process, it has no legal authority to look at a prospective party’s candidate selection rules (assuming these exist). 

So the Internet Party can definitely get registered. So how can they be held to account in terms of if their rules are democratic enough:

The only real teeth and claws to this provision is that it gives a disgruntled prospective candidate (or ordinary party member) a ground on which to challenge candidate selection rules (and the way they are applied) in court. But, of course, that relies on there being some individual upset enough to get litigious against the party she or he purportedly supports and wants to represent.

So a member of the Internet Party could challenge the rules in court. Would they have any grounds for doing so?

There are a couple of initial points stacked against any such claim. The actual demands of the Electoral Act are pretty minimal: so long as there is “provision … made for participation in the selection of candidates …  by … delegates who have (whether directly or indirectly) in turn been elected or otherwise selected by current financial members of the party” then s.71 is met. Additionally, the Internet Party has as its legal advisor one Graeme Edgeler, and I’d be very, very loathe to think that he’d allow the Party to run under a set of rules that aren’t consistent with the law.

Having said that, however, I think he might just have done so (or, at least, will do so if and when the Internet Party is registered with the Commission under its current set of rules).

That is significant. Geddis is saying that he thinks there is an arguable case the rules are not consistent with the law.

The Executive Committee (at its sole discretion) gets to both select who will be on the list and where they are placed on it. The membership gets to rank the Executive Committee’s initial choices, but with the Executive Committee then only required to “have regard” to the outcome of this process when making its final decision.

What, then, is this “Executive Committee”? Well, the relevant point to note for this election is that it consists only of the people who are setting up the Internet Party without any membership input at all.

Also the Executive Committee can not be changed by the membership, as only nominations made by a current member of the Executive Committee are valid. The party founders basically can stay there as long as they want, by refusing to nominate anyone else for their Executive Committee.

So, when it comes time to choose the candidates for 2014, the Internet Party’s Executive Committee will be made up of the self-appointed “founders” of the Party … irrespective of the party membership’s views on their suitability or otherwise. Which means that any initial screening of prospective candidates for the Party’s 2014 list (consistent with rule 12.1), as well as the final decision on the list’s makeup and rank order, will be taken by individuals who have not been (either directly or indirectly) “elected or otherwise selected by current financial members of the party”.

Not very democratic is it.

All of which means that I rather think that DPF might be right when he questions whether the Internet Party’s rules will meet the requirement of s.71 of the Electoral Act (once it is registered with the Electoral Commission) – at least, with respect to how those rules apply for the 2014 election.

It will be very interesting to see who gets appointed to the all powerful Executive Committee.

 

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Is the Dotcom Party democratic enough to be registered?

March 29th, 2014 at 9:15 am by David Farrar

S71 of the Electoral Act states:

Every political party that is for the time being registered under this Part shall ensure that provision is made for participation in the selection of candidates representing the party for election as members of Parliament by—

  • (a)current financial members of the party who are or would be entitled to vote for those candidates at any election; or

  • (b)delegates who have (whether directly or indirectly) in turn been elected or otherwise selected by current financial members of the party; or

  • (c)a combination of the persons or classes of persons referred to in paragraphs (a) and (b).

Now there have been some court cases over this part, and the requirement to be democratic is not specific. It doesn’t rule out a party’s board having a veto on the basis that the board is elected by the members or their delegates.

However having just been reading the Electoral Law in NZ textbook by Andrew Geddis (it was my relaxing reading on the Milford Track – yes seriously!) the requirement does not mean there is no obligation at all, and Russell Brown has provided a quick analysis of the Internet Party rules:

1. There is a special role called ‘party visionary.’ This is defined as Kim Dotcom, or a person selected by Kim Dotcom. THis visionary has the automatic right to sit and vote on the party’s executive and policy committee and cannot be kicked out by the membership.
2. To stand for election to the party’s executive, in addition to being nominated by current members of the party you’ve got to be nominated by a current member of the National Executive. This locks in the incumbents.
3. The party’s executive has nearly unfettered control over the list: they put together an initial list, send it out to the membership to vote on, and then they ultimately decide what the final list should be having regard to the member’s choices.
4. The national executive chooses who stands in what electorate. No local member input at all.
5. The party secretary has a very important role (eg they get to solely arbitrate over disputes; they set out the process for amending the constitution, they decide the process for electing office holders; they’re a voting member of the National Executive). The only problem is they’re legally an employee of the party’s shell company, meaning that it is very hard for the members to exercise democratic control over the secretary (you can’t just fire an employee).
6. On a related note: the way the Internet Party is structured is so all its assets are kept in a shell company (Internet Party Assets Inc), away from the party itself. I don’t know what the purpose of this one was TBH. (the rules of this company were meant to be attached to the constitution in a schedule, but as far as I can see they’re not there)

The full rules are here.

They key thing is the combination of the second and fourth point. The members have no ability to change the National Executive and the Executive selects electorate candidates with no input from members. I believe that the combination of those two aspects raises a serious case for the Electoral Commission to consider that the Internet Party does not meet the democratic requirement of S71 of the Electoral Act.

Other parties (including National) have strong National Executives that can have a final say in candidate selections. However those Executives are able to be voted out by the party grassroots if the members are not happy with them.

With the Internet Party, Dotcom effectively appoints the inaugural Executive Committee.  The founders are the inaugural members of the Internet Party Assets Inc.

Clause 8.13.2 requires all nominations to future Executive Committees to be nominated by a member of the current Executive Committee. That means they can block ordinary members standing. It’s not dissimilar to the old politburo elections – anyone can stand as long as you are approved by the current leadership.

So the Electoral Commission may need to determine if the Internet Party is democratic enough to be registered as a political party. It is definitely arguable it is not. Basically the founders can maintain permanent and total control of the party by not agreeing to nominate anyone else to join the Executive Committee. And the Executive Committee makes all the selection decisions.

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Another Labour lie

February 14th, 2014 at 3:00 pm by David Farrar

Andrew Little has proclaimed:

The Easy-Vote card which has been used in the last couple of elections should be reinstated says Labour’s  Justice spokesperson Andrew Little .

This is a lie. The implication is that the card has been removed. The Easy-Vote card will be used in the 2014 election in the same way as it was in 2011.

The Electoral Amendment Bill which had its second reading today removed clauses in the original Bill that would have seen the use of the Easy-Vote card confirmed for all future general elections.

No, this is deceptive. The Electoral Commission proposed *extending* the use of the card so that one would not need to check a name off the electoral roll at the time of voting, if they had a card. The Justice and Electoral Select Committee *unanimously* declined to do this as it would have meant that scrutineers would have no chance to effectively object to a vote card being issued, as they would not know who the voter is purporting to be.

The key thing is these changes do not in any way remove the Easy Vote card and they were unanimously agreed to by the Select Committee – which includes several Labour MPs on it. There was no minority report.

Andrew Little is outright lying when he says he wants the card reinstated. He knows it has not been removed. It will be used in the 2014 election in the same way as in 2011. It is a very useful device as it gives the returning officer the page and line number of the voter so they can be quickly located on the electoral roll.

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Some electoral tweaking

January 22nd, 2014 at 2:00 pm by David Farrar

Late last year the Justice and Electoral Select Committee reported back the Electoral Amendment Bill, which was implementing recommendations from the 2011 election inquiry.

There’s a few changes made by the select committee. They are:

  • Removing the proposed ban on displaying streamers, ribbons and rosettes on election day
  • Allowing the High Court to order a recalculation of the allocation of list seats if there is a successful electorate electoral petition
  • Requiring voters to verbally confirm their identity when being issued voting papers, so one can’t just use an Easy Vote card to get issued voting papers

All seem very sensible.

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Cunliffe referred to Police

December 5th, 2013 at 11:00 am by David Farrar

Stuff reports:

A tweet by Labour leader David Cunliffe on Saturday, the day of the Christchurch East by-election, has been referred to police.

Cunliffe published a message on his Twitter profile urging Christchurch East residents to vote for Labour candidate Poto Williams.

“If you are resident in Christchurch East don’t forget to vote today – for Labour and Poto Williams!” he wrote.

Under Electoral Commission rules, no campaigning of any kind is allowed on election day.

The Electoral Commission announced this afternoon it had referred Cunliffe to the police saying it believed he had breached the Electoral Act.

It said Cunliffe had allegedly breached the act because the message “was a statement published on polling day advising, or intended, or likely to influence electors as to the candidate for whom they should or should not vote in the by-election”.

I understand serial litigant Graham McCready has announced that he will do a private prosecution, if the Police don’t prosecute. This will be very embarrassing as it is an open and shut case, and Cunliffe would I think have to plead guilty as there is no dispute he sent the tweet, or that the tweet broke the Act.

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Cunliffe breaches election day law

December 3rd, 2013 at 1:58 pm by David Farrar

The Press reports:

Labour leader David Cunliffe might have fallen foul of the law with a message posted on his Twitter profile on the day of the Christchurch East by-election.

The Electoral Commission is looking into the tweet by Cunliffe on Saturday urging Christchurch East residents to get out and vote for the successful Labour candidate Poto Williams.

“If you are resident in Christchurch East don’t forget to vote today – for Labour and Poto Williams!” he wrote.

Under Electoral Commission rules, no campaigning of any kind is allowed on election day. …

He said he was not aware of the rules at the time it was sent. He would co-operate with the Electoral Commission if it investigated.

David Cunliffe has been a candidate in five general elections, and even the lowliest candidate knows you can not campaign on election day. The Leader of the Opposition can not plead ignorance of the law.

If the leader of NZ’s second largest political party can campaign without consequences on election day, then how could the Electoral Commission expect anyone else to take the law seriously?

The tweet may not have had a huge impact, but I can’t see anyway the Electoral Commission can not refer it to the Police without setting an awful precedent.

UPDATE: The Electoral Commission wrote to all parties contesting the by-election the day before, telling them what the rules are for e-day and they even specifically referred to not using Twitter to campaign.

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Dotcom thinks he can be an MP!

September 8th, 2013 at 9:00 am by David Farrar

NBR reports:

Kim Dotcom now says he canstand for Parliament at next year’s election.

Last week, the Teutonic tech titan told media he was going to form his own political party, and take a run at the ballot box himself – only for Kiwiblog’s David Farrar to dig up Section 47(1) of the Electoral Act, whose citizenship provision seems to clearly ruleout Mr Dotcom.

But iin a new interview published today with the Washington Post, Mr Dotcom says, “When I made that statement, my lawyers were still looking into it, and their preliminary answer was that you can only run as a citizen of New Zealand. But they went through the full several hundred pages of New Zealand election law, and they found that if I’m a permanent resident of New Zealand who’s lived here for more than a year and is a registered voter — which I will be in November — you can run for office. I’ll get more specifics on Tuesday when I sit with my lawyers, but at the moment it looks like I can run myself.”

Keeping Stock blogs these responses from Graeme Edgeler:

Edgeler 07092013

 

I know whose money I’m on for being right!

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Labour NOT breaking electoral law again

June 12th, 2013 at 2:20 pm by David Farrar

It is well known you can not distribute pre-filled in or pretend ballot papers. We’ve had this law for decades. But Labour’s Ikaroa-Rawhiti candidate facebooked this (now deleted):

mika

You can see above Labour’s candidate facebooking a filled in ballot paper, and even worse promoting it for advance voting.

UPDATE: A reader says this came up in their timeline as sponsored, which means it is a paid advertisement by Labour. If so, that is even worse.

UPDATE2: Only an offence if done within 3 days of polling day, so not a law breach. I should have checked the Electoral Act rather than go off memory. Happy to state that on this occasion, Labour is not breaching electoral law, and my regrets I got it wrong. May this exception become the norm.

Arguable that with advance voting, the prohibition should be during the advance voting period.

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The 2011 general election inquiry

May 2nd, 2013 at 9:00 am by David Farrar

The Justice & Electoral Select Committee has (finally) reported back on its inquiry into the 2011 general election. A lot of recommendations to comment on. I’ll cover the major ones.

Examining the merits of a standalone postal vote versus a referendum in conjunction with the general election when making decisions about future public referenda

I think it was a mistake in hindsight to have the MMP referendum with the general election. There was a dearth of coverage in broadcast media on the referendum as it was focused on the election. It would be better for referenda in future to be postal (preferably with an online option also).

Prohibiting electioneering activity on election day, including the wearing of rosettes, lapel badges, ribbons, streamers, and party apparel, other than the wearing of a party rosette by a scrutineer inside a polling station

Not a big issue, but it is silly to have a prohibition on advertising but still allow the above stuff.

Commissioning a review of existing regulations applying to social media on election day, to determine whether they are workable

It got very silly when people were warned that even tweeting about the weather could be an offence as it could discourage some people from voting. The law needs to distinguish between communications aimed at persuading people how to vote, and communications that are just sharing how people voted etc.

The aim of the non-electioneering law on e-day is to stop people being bullied into how to vote. It isn’t meant to stop conversations – even online ones.

Amending the Electoral Act 1993 to ensure that there is a significant penalty to act as a deterrent to failing to file a return in a deliberate attempt to defeat the operation of electoral law

Sensible. The current law encourages parties to file no return, as it is a lesser penalty than a false return.

Amending Part 6 of the Electoral Act 1993 to authorise the Electoral Commission to use an EasyVote card as the record an ordinary vote has been issued and as evidence that a special voter is eligible to vote, and to compile manual or electronic records of who has cast an ordinary or special vote using the EasyVote card or other verification methods

That is a very good idea. An electronic record of who has voted (but not how they voted) would provide invaluable demographic data which could be useful in efforts to increase turnout.

Amending the Electoral Act 1993 to make it clear that the Electoral Commission has the power to recalculate and amend the allocation of list seats for an election as the result of a successful election petition regarding an electorate seat

This is important, albeit unlikely. If (for example) a party got 4% of the vote and lost an electorate seat by 10 votes, then they get no seats in Parliament. If an election petition concluded they actually won the electorate seat then there is no mechanism for them to get the four or five list MPs they would have got if they had been declared winner of the electorate seat initially. This change would remedy that.

Examining the current electoral enforcement provisions to determine whether they are adequate

I’m disappointed this recommendation is not stronger. The Police have shown for three elections in a row that they have no interest in enforcing electoral law, and worse little knowledge of it. Their decisions in 2005 were legally incompetent, and they never acted on scores of referrals in both 2008 and 2011. I will be very upset if no change is made in this area, as it is dangerous to have no effective enforcement of electoral law.

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Electoral Act offences

January 19th, 2013 at 9:00 am by David Farrar

The Herald reported last weekend:

Labour’s deputy leader Grant Robertson said Parliament should consider changing the process of dealing with electoral law breaches to speed it up – including giving the Electoral Commission powers to fine or penalise for some breaches. …

Mr Robertson said the Electoral Commission was the expert body on electoral law, yet it had to send any breaches to Police to decide whether to act on them.

“The bigger issue is the number of complaints they’ve sent to the Police that nothing has happened with. So maybe there is another way. For instance, could you set a threshold under which the Electoral Commission was able to impose some sort of penalty rather than have to have Police prosecute it.”

I think Grant was less keen on the Electoral authorities having prosecuting authority when he worked in the PM’s Office in 2005 and they over-spent by $400,000. In a disgraceful decision the Police totally misinterpreted the law and failed to prosecute.

But I agree with him that the Commission should be able to impose fines for minor offences. I also think the Police should be removed entirely from any Electoral Act enforcement. They have shown in 2005, 2008 and 2011 they have neither the expertise or the interest in enforcing it.

Whale points out Truth had this story some weeks ago, as they actually filed the OIA it is all based on.

[DPF: Actually the Herald article is from a year ago, so not based on the Truth article. I mis-read the date. It shows how appalling things are though that a year on, still almost nothing has happened!]

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Labour wants electioneering ban removed

July 2nd, 2012 at 11:00 am by David Farrar

Claire Trevett at NZ Herald reports:

The Labour Party wants a ban on electioneering on election day to be scrapped, saying it was “puritanical” and “from a bygone era.”

Labour’s General Secretary, Chris Flatt, told the justice and electoral select committee it was time for the ban to be reviewed and there was no logical reason for all election advertising to disappear by midnight the night before.

He said provided there were laws to prevent intimidation of voters, there was no reason why electioneering should not be allowed on election day as was permitted in Australia and several European countries.

“The puritanical view in New Zealand could be reviewed, especially in light of the number of people who make up their mind to vote in the last week of the election campaign, and the 12 per cent who make up their minds on the day itself.”

I think the fact so many people make their mind up on the day is exactly why you don’t want people accosting them as they go to vote, handing out propaganda and the like.

I do have some sympathy for Labour’s views. The regulations around election day should be reviewed from first principles. With advance voting becoming more common, that has an impact also. And the suggestion that even discussing the weather on election day could be illegal, as it may deter someone from voting was a bit ludicrous.

So I do support a review, but I don’t advocate removing all restrictions as Labour do. I think that would inevitably lead to inappropriate pressure being put on people to vote.

A related issue is whether we should allow exit polls, as many countries do. They are currently banned.

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Some Conservative legal problems

May 28th, 2012 at 2:00 pm by David Farrar

Claire Trevett at NZ Herald reports:

Conservative Party leader Colin Craig loaned $1.9 million to his party for its election expenses, but this month wrote off $1.6 million of that loan as a donation.

A $1.6 million donation was disclosed to the Electoral Commission on May 18 under the law requiring donations of more than $30,000 to be declared within 20 working days.

The party’s election return was also filed with the Electoral Commission on May 18 – about two months late – and it listed no donations over the disclosure threshold of $15,000 and only $11,791.50 in smaller sums.

There are numerous issues here, which may have some legal consequences. For a start one could dispute whether the loan was even a loan, when there was obviously no capacity to repay. So the first issue is was it a genuine loan, or should it always have been treated and disclosed as a donation.

The second issue is the interest on the loan. Let’s start with what the Electoral Act says on interest free loans. S207 defines a party donation as including:

where credit is provided to a party on terms and conditions substantially more favourable than the commercial terms and conditions prevailing at the time for the same or similar credit, the value to the party of those more favourable terms and conditions

So how big is the value of a $1.9m interest free loan?

Mr Craig said his company, Centurion Management, had paid the bills for the Conservatives’ campaign totalling $1.55 million during 2011, and subsequently billed the party for the amount.

We’ll come back to the legality of having a company pay bill on behalf of a political party.

The auditor’s report with the donation return said it was possible that Mr Craig’s $1.6 million should be listed in the donation return for election year – rather than now – if it was deemed to be a donation on the date the bills were originally paid by way of a loan, rather than the date the debt was forgiven.

And if it was a donation at the time the bills were paid, it was not disclosed when it was meant to.

Mr Craig said the party had treated the bill payments by Centurion on its behalf as credit on favourable grounds and declared interest on that at a rate of 12 per cent, which totalled a $10,590.50 donation in its return.

This is where the numbers do not add up. An annual interest rate of 12% is equal to a daily rate of 0.033%. Which means from the day the $1.6m bills were paid, daily interest of $526 is accrued.

Now if over $15,000 of interest was accrued before 31 December 2011, then a donation should have been disclosed in their donation return. This means that if the bills were paid before 3 December 2011, then the Conservatives have failed to disclose the donation in their annual return. The Electoral Commission needs to determine when bills were actually paid, to determine this.

However the larger problem may be the requirement to immediately disclose any donation over $30,000. Once that $1.6m had been paid for more than 57 days, then it needed to be disclosed. Now the overall donation was disclosed on 17 May 2012. S210C(6) states:

A return must be filed under subsection (1) or (2) within 10 working days of the donation being received by the party secretary.

This means that if the value of the foregone interest exceeded $30,000 by 03 May 2012, then it should have been disclosed before 17 May 2012. Now when is the latest the expenses should have been paid. S206E states:

A claim that is sent to the party secretary in accordance with subsection (1) must be paid within 40 working days after the day on which the declaration required by section 193(5) is made.

The declaration referred to is the declaration of election results. This was on 17 December 2012. So the bills must be paid within 40 working days. But a working day excludes any days between 25 December and 15 January. So 40 working days after 17 December is the 5th of March. This is the last possible day the advertising bills were paid. Personally I would be surprised if they were not paid in December, as people get grumpy if not paid.

The interest that would accrue between the 5th of March and the 3rd of May is $31,000 approx. So even under the most favourable legal timings I would say they also breached the continuous disclosure rule.

But on top of this we have the murky fact that the bills were paid by Centurion Management. One can either treat Centurion as an agent of the party, or as an outside entity. If it was an outside entity, then Centurion should have billed the Conservatives by the 5th of February and been paid by the 5th of March. It appears they were not paid until the mid May, when Craig repaid them. So that arrangement is also legally suspect.

If they were acting as an agent of the Conservatives (like an ad agency would), well was this documented. Of importance is that Centurion is not the private company of Colin Craig. He owns 55% and his wife 40%, but 5% is owned by a Stephen and Sarah Plummer.  Mr Plummer is a director. Did the Board formally approve the use of Centurion to act on behalf of the Conservatives and pay all their bills for them?

So I’d say there are a huge number of issues for the Electoral Commission to gets its head around. At a minimum they need details of when actual bills were paid, and then calculate foregone interest from those dates.

It is worth noting that Craig was open about the fact he was bankrolling the campaign for the party he leads. However that doesn’t mean one can ignore the rules. What Colin Craig should have done is set up a bank account for the Conservatives from the moment it was registered, donated the money to them upfront, and then have the party pays bill directly and disclose his donation within 10 working days. The way he has gone about it, has not been clean. Private companies should not be paying bills on behalf a registered political parties, and the loan should have been treated as a donation from the start as there was never any possibility of significant repayment.

It will be interesting to see what the Electoral Commission determines.

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2011 election review submission

May 8th, 2012 at 12:00 pm by David Farrar

SUBMISSION OF DAVID FARRAR TO THE
INQUIRY INTO THE 2011 GENERAL ELECTION BY THE JUSTICE & ELECTORAL SELECT COMMITTEE

About the Submitter

  1. This submission is made by David Farrar in a personal capacity. I would like to appear before the Committee to speak to my submission.

Maori Roll Enrolment

  1. The Electoral Commission has suggested that the “Maori option” be run not after each census, but in the lead up to each election. I strongly oppose changing the Maori option timing from after each census to before each election.
  2. This would encourage tactical enrolments as if a particular seat (either general or Maori) is seen as marginal, parties will encourage their supporters to swap rolls to try and win the seat. This can happen under the status quo, but would be far more likely when the option to swap is done in an election year.
  3. It would also upset the electoral populations. The option is run after every census, so that it can be used to determine electoral populations and hence boundaries. Allowing people to then swap rolls after the boundaries are set could cause some seats to have extremely low or extremely high electoral populations.

Election Day and Advance Voting Restrictions

  1. The Electoral Commission recommends removal of the polling day exemptions for party lapel badges and ribbons and rosettes in party colours. I agree that rosettes and lapel badges could be banned, but would suggest that party scrutineers be given name badges to indicate they are scrutineers not officials.
  2. However I would not remove the exemption for streamers and balloons in party colours. We do not need to have a balloon or ribbon police.
  3. I also oppose the recommendation to prohibit election advertising within 100 metres of an advance voting place. It is unfair to a party or candidate that may have booked a billboard at a location near an advance voting place, but also is impractical. In theory even newspapers with ads in them would have to be removed within 100 metres of an advance voting place.
  4. The likely growing popularity of advance voting, along with the advent of social media, makes the current laws on election day communications somewhat outdated. I suggest a first principles review is done of what harms these restrictions are designed to prevent (such as undue pressure on people as they are about to vote), and then decisions made on what is a sensible level of regulation to minimize or prevent these harms.

Electronic Voting

  1. I note that it is proposed that some local Councils will trial e-voting for the 2013 local body elections, and then in 2016 possibly have e-voting available for all local body elections. If this is concluded sensibly, then it may be possible to look at an e-voting option for the 2017 or 2020 general election.
  2. As an interim step, I support the Electoral Commission intention to allow overseas voters to deliver their votes to the Electoral Commission over the Internet.

Allocation of List MPs

  1. I agree with the recommendation that the High Court should be able to direct the Electoral Commission to recalculate the allocation of list seats, as a result of a successful electoral petition.
  2. It would also be sensible to allow the High Court to direct the Electoral Commission to recalculate the allocation of list seats as the result of a by-election held immediately after the general election as a result of a candidate dying. This removes the incentive for a party to put up a dying candidate in a “strategic” seat.

Election Returns

  1. I agree that a party or candidate who refuses to file a return should be able to be prosecuted for a corrupt practice. This removes the incentive to file no return rather than a false return.
  2. However I would go in the other direction for late returns, and make this a minor infringement that results in an automatic modest fine (like filing your tax return late). It is silly to involve the Police in such minor issues.

Broadcasting Act

  1. I agree with the Electoral Commission that the definitions of election programmes and election advertisements in competing Acts should be harmonized. My preference would be to remove the electoral broadcasting sections from the Broadcasting Act, and have then in the Electoral Act.
  2. I repeat my earlier submissions than the ban on political parties purchasing their own broadcasting time is outdated and an unjustified restriction of free speech. Worse, it means that different parties have different effective spending limits as a party allocated less broadcasting spend than another, is unable to close that gap.

Role of the Police

  1. I have advocated for over six years that the Police should be removed from their current role of prosecuting electoral breaches. I am pleased to see the Electoral Commission effectively come to the same conclusion.
  2. In 2005 their investigations of electoral law breaches was arguably incompetent. Extremely basic errors in law were made, where they ignored strict liability and confused the difference between spending limits and who can authorize and advertisement.
  3. In both 2008 and 2011 they did not investigate alleged offences in a timely manner. In fact we still do not know their conclusions on offences they were referred to them almost a year ago. I do not blame them for prioritizing other crimes ahead of electoral offences, but it is wrong that there is no timely and effective enforcement of electoral law.
  4. I propose that the Committee recommend to the Government that they agree in principle that the Police be removed as the enforcement agency for electoral law, and that they consult on the preferred replacement model.

Referenda

  1. It seems silly that every time the Government and Parliament wants a referendum they have to pass a special Act of Parliament to hold it, and decide each time what spending and other restrictions are appropriate.
  2. I support the creation of an Electoral Referendum Act that will set out the laws for all future referenda.
  3. The ERA could supersede the CIR Act by specifying the two methods of triggering a referendum are by way of petition (the CIR route) or resolution of the House of Representatives.

Date of Election

  1. The early announcement of the election date was very beneficial both for election administration, and for creating a level playing field for all parties.
  2. Based on this success, I believe it would be beneficial for the date of the general election to be fixed as being the last Saturday in November.
  3. If in future a Government feels it has lost the majority of the House, then it would be incumbent on the House to find a new Government which has its confidence.

Communications from MPs

  1. A number of MPs were referred to the Police for unauthorized election advertisements. As MPs will be aware, the authorization requirements apply over the entire three year election cycle – not just in the regulated period.
  2. It is useful to consider the reason we have authorization statements – to make clear who is behind an advertisement. It is a transparency requirement.
  3. The nature of parliamentary communications is that some of them will always be political in nature and hence possibly an election advertisement. This means MPs at present need to either refer all communications to the Electoral Commission, or stick authorization statements on everything they publish.
  4. I believe that a simple solution would be to amend the Electoral Act to state that outside the regulated period, any publication put out in the name of a Member of Parliament, is deemed to be authorized by that Member of Parliament and does not need a promoter statement.

Minor authorisation breaches

  1. In many cases where there has been a referral to the Police for the lack of a promoter statement, the breach has been technical rather than substantive – the identity of the promoter has still been very clear. I believe this is very different to a case where advertisements are done anonymously in an attempt to hide their promoter.
  2. It would be sensible to allow the Electoral Commission to levy a small infringement fine for minor breaches, rather than require it to be considered in details by a prosecutorial authority, and possibly waste court time.

Donations

  1. The donations regime seems to generally be working well. However it would be a boost to transparency to lower the level at which donations must be disclosed within 10 days from $30,000 to $15,000 – which is the disclosure level for annual returns. This should simplify requirements for political parties, and allow scrutiny of significant donations in a more timely fashion.
  2. Political parties are having to track any donation above $15,000 anyway, so reporting them as they occur should not pose any difficulty. Perhaps the requirement to report within 10 days could be altered to reporting monthly, say by the 20th of each month for the previous month.
  3. It could also be worth requiring near-instant disclosure (say within three working days) for the month before the election. In 2008 two parties received very large donations just before the election and did not disclose them until after the election.
  4. I would also submit that the ability to make anonymous donations through the Electoral Commission should be removed. A donor can donate up to $15,000 a year without public disclosure, which is sufficient for those wishing to donate without publicity. I am skeptical that the identities of those who donate anonymously through the Electoral Commission are a total mystery to the recipient parties. While it is a much more rigorous regime than the Local Electoral Act, it is difficult to have confidence that the identity of the donor is not able to be logically deduced from previous conversations with a party.

Thank you for considering this submission, and I look forward to appearing.

 

David Farrar

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Better late than never

February 11th, 2012 at 2:05 pm by David Farrar

Claire Trevett reports at NZ Herald:

Labour’s deputy leader Grant Robertson said Parliament should consider changing the process of dealing with electoral law breaches to speed it up – including giving the Electoral Commission powers to fine or penalise for some breaches.

Mr Robertson said the Electoral Commission was the expert body on electoral law, yet it had to send any breaches to Police to decide whether to act on them.

I’ve been advocating this for years, including in submission to select committees. Sadly, Labour never voted in favour of changing the law.

While their sudden enthusiasm to do so, seems rather opportunistic, it is the right thing to do.

“The bigger issue is the number of complaints they’ve sent to the Police that nothing has happened with. So maybe there is another way. For instance, could you set a threshold under which the Electoral Commission was able to impose some sort of penalty rather than have to have Police prosecute it.”

Time and time again the Police have shown, with all due respect, a total disinterest in enforcing electoral law (the most notorious case being the non charging of Labour over their $400,000 deliberate over-spend in 2005). They would obviously rather be catching muggers  etc.

Even worse, the Police seem to have a deliberate policy to not decide on any complaints until after the election. They see this as not interfering with the election, but it is in fact a worse form of interference. It means parties and candidates and others can breach electoral laws, and not have to worry about the stigma of being charged prior to the election. This encourages rule breaking.

I will once again be submitting to change the law to the 2011 election review later this year. I look forward to Labour voting for removing the Police from any role in electoral law enforcement, and other parties doing the same.

What should happen is that the Electoral Commission itself can levy small fines for relatively minor issues such as late returns and the like, or missing promoter statements on ads that still have a clear author. For more major issues they should be able to lay charges directly with the courts.

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TVNZ also in the gun

February 10th, 2012 at 10:00 am by David Farrar

The Electoral Commission has also announced:

TVNZ OneNews coverage before 7pm on 26 November 2011.  It is the Electoral Commission’s view that the broadcast breached section 197(1)(g)(i) of the Electoral Act 1993 because it included statements that were likely to influence any elector as to the party for whom the elector should or should not vote.

I didn’t see the news that night (mainly because I was actually at TVNZ getting ready for the election broadcast) so can’t recall what they broadcast, which has triggered this referral.

It will be interesting to see the details of the material complained about, once it is made public.

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Jolyon White referred to the Police

November 19th, 2011 at 12:08 pm by David Farrar

The Electoral Commission has announced:

On 18 November 2011, the Electoral Commission referred Jolyon White to the Police for sticker advertisements attached to National Party billboards.

It is the Electoral Commission’s view that the publication of each of these advertisements constitutes a breach of sections 204F of the Electoral Act 1993 because they are election advertisements that do not contain a valid promoter statement.
White may not be the only one who ends up there. Something the media have not reported is that vandalism campaign is continuing.  Whale is seeking the owners of certain vehicles, and the identity of a certain person.
If either of these turn out to be Green Party activists and members, it will not be a good look for them.
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Why Simon Power was wrong to trust Labour

November 12th, 2011 at 5:03 pm by David Farrar

Readers will recall Labour’s Electoral Finance Act, and how they rammed it through Parliament despite massive opposition. This shattered decades of rough bipartisan consensus that significant electoral law changes should be decided by either the public, or with support from (at least) both major parties. The Electoral Act is not meant to be the ultimate prize for the winner, where they get to rewrite the rules in their favour.

Hence Simon Power gave Labour a veto over the changes to electoral finance laws. He allowed them to veto reform of the broadcasting restrictions. He went even further than that, and reintroduced third party spending limits, despite the opposition of his own party. He did this with the most noble of motives – to remove electoral law from partisan gerrymandering.

Today Phil Goff shattered that. Radio NZ reports:

“People see a system being rorted, but my advice is that if we vote for MMP, then it will be reviewed.

“If there’s a Labour Government, we’ll take that rort out the system. You’ll have to get five percent to get more seats than simply the electorate seat that you win – that stops the rort.”

Simon Power set up a review of MMP, in case it wins. Phil Goff has just announced that Labour will remove the electorate threshold regardless of what the independent review by the Electoral Commission recommends.

There is a legitimate debate to be had about the threshold, and if MMP is retained the independent review is where that debate should occur. But let us not pretend, this is about any high minded principle. Labour want to legislate away their opponents. Their motivation is to change electoral law, so they will get to form Government more often.

By announcing unilaterally what would happen if Labour is in Government, Phil Goff has shattered the hard won agreement Simon Power achieved that significant electoral law changes should have bipartisan support. Goff has shown that if Labour forms Government, they will make partisan changes to the Electoral Act, to help Labour retain power. They have learnt nothing from the Electoral Finance Act.

This is not about ACT. This is not about whether or not the one seat threshold is or is not a good idea. This is about Phil Goff pledging to ignore the independent review and to use the Electoral Act to favour Labour electorally.

It was a Labour/Green/NZ First voting bloc that gave the Electoral Finance Act. God knows, what they will do if they get to form Government.

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Infrequently asked electoral questions

November 10th, 2011 at 1:32 pm by David Farrar

For the geeks, Graeme Edgeler asks and answers them. I like this one.

Well, how would you surreptitiously distort an election?

Nominations having closed, I don’t feel too bad announcing this one more broadly now.

My favoured method involves getting a terminally ill person (perhaps more than one, just to be “safe”), to run in the anchor electorate of a sub-5% party (e.g. Epsom). If an electorate candidate (even an independent) dies between the close of nominations, and the close of voting, the election for that electorate is cancelled (resulting in a by-election), and only the party votes count. That seat couldn’t then be used to get that party (e.g. ACT) into parliament by avoiding the 5% threshold, potentially swinging a close election. And as that person doesn’t need to have any formal affiliation to a party (they might claim to be doing it as a stunt to raise awareness about some aspect of the health system), you might be able to get away with it.

This is a rule we really don’t need, and I’m guessing it’s a hangover from first past the post. Which, to be honest, doesn’t need it either. Given that you’re having an election anyway, let people vote, and if the dead candidate wins, then have a by-election.

I tend to agree. If the US can elect dead politicians, so can we.

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Anderton v Electoral Commission

November 9th, 2011 at 3:53 pm by David Farrar

When I saw that the Electoral Commission had referred Jim Anderton to the Police, I remarked to a couple of people that I was sure he would have a fit and attack the Electoral Commission. I was right. The Herald reports:

Progressive leader Jim Anderton has launched an extraordinary attack on the Electoral Commission for referring him to police for a possible breach of the Electoral Act. …

But Mr Anderton, who was referred to police over election advertising before the 2008 election, said he had done nothing wrong.

Jim thinks he has never done anything wrong in his life. His valedictory was full of how he was right and everyone else had been wrong. If you ask him hig biggest mistake, he will be stumped for an answer.

“I’m authorised to send my constituents any message I damn well like. This is my electorate.

First of all don’t you like how he refers to them as possessions.

Secondly he was not writing to them in his capacity as an MP for parliamentary purposes. He was writing to them to tell them to vote for Megan Woods. Even the thickest of MPs should have learnt by now that telling people who to vote for is not a parliamentary purpose.

Thirdly, MPs are not above the law. He is not a King or a God. He is merely an MP. That doesn’t mean he can do anything he damn well likes.

His arrogance is the same as that which destroyed the Alliance. He demanded the party members surrender total control of the organisation to him, and effectively make him dictator. They refused, so he left.

“And if the Commission wants to start stopping electorate MPs from communicating with their electorate, they’d better get prepared for a breach of privilege complaint, because that’s what it amounts to.

Oh I so hope he tries that – it would be most amusing. In reality all he is trying to do is bully neutral public servants and have them exempt him from the law.

They are interfering with the regular work of an MP.”

It is not the regular work of an MP to write to voters and tell them who to vote for. That is the role of parties and candidates.

“They have a few things like rape and pillage going on around the country, and this is simply ridiculous to tie up senior members of the police force with this kind of garbage.”

In Jim’s world, electoral law breaches are not an offence. I suspect Labour agrees with him.

Mr Anderton said the letter was sent outside the regulated period under the Electoral Act, but the commission referred it to police on the basis that the letter was not properly authorised.

The regulated period has nothing to do with this. In fact, the law for around 20 years has been the same in terms of requiring authorisation.

Idiot/Savant at No Right Turn comments:

Yesterday, I was willing to attribute Anderton’s crime to (unforgivable) ignorance. Today, its clear that its one of arrogance. And he needs to be held to account for it.

Dead right.

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Anderton referred to Police

November 8th, 2011 at 12:06 pm by David Farrar

Jim Anderton has been referred to the Police, for his letter to all voters in Wigram urging them to vote for Labour’s Megan Woods.

The Electoral Commission has ruled on a complaint from Cameron Slater that Jim Anderton is ineligible to be a promoter of a candidate advertisement, as he is a party leader. He did not register as a promoter, and someone involved in the administration of the affairs of a registered party is ineligible to be a unregistered promoter.

This could be quite a lot more serious that the normal referral for forgetting to put an authorisation statement on an advertisement. There are two reasons this is much more serious:

  1. Jim Anderton has done something he was not allowed to do under the law.
  2. This was not an obscure ad on Facebook or in a school newsletter, but a letter sent to every voter in the electorate

Sadly we will not know before the election the outcomes of any of the complaints to the Police. In what appears to be a fit of cowardice, it seems they have a policy that they will not decide on any prosecutions until after the election. This is massively wrong, and actually encourages law breaking.

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National MP also referred to Police for electoral breach

November 2nd, 2011 at 3:03 pm by David Farrar

Katie Chapman at Stuff reports:

National MP Michael Woodhouse could be fined up to $40,000 after he allegedly broke election campaign rules.

The party’s campaign manager Jo de Joux confirmed Woodhouse, who is the Dunedin MP, was being dealt with by police after a complaint was received regarding two advertisements that did not carry promoter statements.

Everything a candidate puts out should pretty much have an authorisation statement. Could be an expensive lesson. The likely fine, if changed and found guilty, is a few hundred dollars.

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