Court rules on entrenched provisions of Electoral Act

March 11th, 2016 at 9:00 am by David Farrar

Radio NZ reports:

Last year, the High Court ruled the ban inconsistent with the Bill of Rights Act, but said it had no power to overturn the legislation because Parliament had passed it lawfully.

In the latest case, Taylor and the other inmates claimed that the ban was not lawful, because changes to who could vote needed to be passed with a 75 percent majority.

However, in a judgement issued today, the High Court ruled that the 75 percent majority only applied to changing the voting age.

It was an interesting case as it dealt with specifying what aspects of the Electoral Act need a super-majority to change them.  The decision of the court is here.

UPDATE: One of the applicants demanding the right to vote was a Rhys Warren, the Rhys Warren just arrested for shooting four police officers.

I look forward to Labour explaining why they think Warren should get to vote, even if found guilty of attempted murder of four police officers.

This also indicates that Warren was a prisoner as recently as August 2014. It will be interesting to learn in time what his previous offences were and if any of them are strike offences. From where I stand, he looks a great candidate for three strikes.

A bad court decision for free speech

March 10th, 2016 at 1:00 pm by David Farrar

The Dom Post reports:

Winston Peters has won a case that resets the Electoral Commission’s clock on the publication of false election advertising on the internet.

The NZ First leader complained about two false statements published in the two days leading up to, and the day of, the September 2014 general election.

One complaint was against an ACT party candidate’s Chinese language television advertisement misquoting Peters on comments he made about Hong Kong-born businessmen John and Michael Chow’s plans for a 15-storey adult entertainment centre in Auckland.

The other was the Conservatives making misleading statements about NZ First’s alcohol reform policy and not correcting the statements even after the Advertising Standards Authority said they were wrong.

It is an offence to publish a statement known to be false, with the intention of influencing voters, on polling day or on the two days before polling day.

The Electoral Commission refused to act on Peters’ complaint about the two advertisements because it said they were not first published on the banned days.

Peters asked the High Court to clarify the point and has won his case.

In her decision issued on Wednesday Justice Jill Mallon​ said the issue was whether “publish” meant “first published” or first published earlier and continued to be available on the internet on the banned days. 

The judge said the law did not require the statements to be first published on the banned days. The law covered the situation of statements being published earlier and not having been removed.

I rarely criticise a judicial decision interpreting electoral law, but in this case I will.

I think the decision is a significant blow to free speech in election campaigns, and also places little credence on the intent and legislative history of the law.

Most issues of speech in NZ do not involve criminal penalties. We have civil remedies such as defamation, and also institutions such as the ASA, Press Council and BSA who can rule of whether some statements are misleading.

It should be very very rare that you face going to jail for what you say, unless it is of the level such as threatening to kill.

The Electoral Act has one of those rare exemptions, S199A which says:

Every person is guilty of a corrupt practice who, with the intention of influencing the vote of any elector, at any time on polling day before the close of the poll, or at any time on any of the 2 days immediately preceding polling day, publishes, distributes, broadcasts, or exhibits, or causes to be published, distributed, broadcast, or exhibited, in or in view of any public place a statement of fact that the person knows is false in a material particular.

The maximum penalty for being found guilty of a corrupt practice is two years in jail and losing the right to vote for three years.

The intent behind this section is to cover a situation where say the day before the election a pamphlet is delivered to every household saying “A is a child abuser”. There is no time for the person named to refute it, the media to report it, and it has a significant impact on the election. If you are the rival of Candidate A, you might be willing to risk defamation (if you are wealthy) if it will throw the election your way. Hence the reason the section was placed in the Act – to provide a greater deterrent.

The court has ruled that this section can now cover any statement made at any time, so long as it is still publicly available in the two days before the election. This is a significant “change”.  You may now see politicians threatening people with criminal prosecutions for things said months before an election, unless they refuse to take them off the Internet. As a criminal issue, you would need it proven what you said is false, and you knew it was false, and you refused to withdraw it. But in an election campaign it is very common for people to claim that what someone else has said is false. The chilling effect of then threatening you with criminal prosecution is significant.

Peters is someone who does. He threatened me under this very clause when in 2008 I (correctly) pointed out that NZ First had not filed new party rules allowing a candidate (Peters) to be one the list without standing as a electorate candidate (which he was not), and that this raised issues of whether his nomination was valid.

Having S199A applying to statements made before the last 48 hours goes against the idea that this is for stuff where it is too late to respond. If a week before the election you think someone has said something false, you can rebut them and publish why they are wrong. The day before an election you might not be able to.

In view of this court ruling, I think Parliament should look at whether S199A should be amended or repealed. It was written in the days before the Internet and news cycles that are instant, not once a day at 6 pm. If someone says something false 48 hours before the election, you can have a rebuttal published within an hour, and through social media generate a backlash against the person making the false claim that will reach most voters (as media will pick it up also).

There should be consequences for people who make knowingly false claims to influence an election, But those consequences should be electoral, civil or reputational – not criminal.

If this law is left unchanged, then powerful politicians will use to to bully critics to remove criticism of them, with the threat of going to jail if they don’t. Sure many will be defiant, but many will think it is not worth the risk.

So as I said I think the ruling is a very bad one for political speech.

 

Court says prisoner voting ban breaches the Bill of Rights Act

July 25th, 2015 at 12:00 pm by David Farrar

Stuff reports:

A ban on prisoners voting has been ruled inconsistent with the Bill of Rights, in a declaration from the courts that is the first of its kind.

Prisoner Arthur Taylor is one of a group of five serving prisoners who argued that the Electoral (Disqualification of Sentenced Prisoners) Amendment Act 2010 was inconsistent with the New Zealand Bill of Rights Act 1990.

Under the amended act, all people in prison on election day are unable to vote.

Taylor lost a High Court bid in September last year which would have allowed him to vote in the general election. 

On Friday, Justice Paul Heath formally declared the ban to be inconsistent with the New Zealand Bill of Rights Act, which all laws should be in line with. 

The declaration from the High Court was the first of its kind. It sends a formal message to Parliament that the law it passed was indefensible as it limited individual rights without reasonable justification. 

This is not a big surprise, as the Attorney-General said much the same thing when the law change was being considered.

I’m of the view that the previous ban on prisoners sentenced to more than three years was arbitrary and unprincipled.

I believe either all prisoners should be able to vote, or no prisoners should be able to vote. And I’m not overly keen on giving Clayton Weatherston a vote I have to say.

Party submissions to the 2014 election inquiry

May 19th, 2015 at 3:00 pm by David Farrar

Some interesting submissions to the 2014 general election inquiry.

Conservatives

  • Against prohibition on parties purchasing broadcasting advertising
  • Makes a case that Electoral Commission did not allocate broadcasting funds appropriately

Labour

  • Proposes cutting off welfare to people who don’t enrol
  • Wants enrolment on election day itself
  • People should be able to enrol on the Maori roll even if they do not indicate they are of Maori descent!
  • Wants the broadcasting allocation extended to all mediums (ie a general allowance for advertising)
  • Scrap TV opening and closing broadcasts

National

  • Supports restrictions on campaigning at polling places during advance voting
  • Look at changing boundary reviews from every five years (post census) to every six years (the year after every second election)
  • Increase electorate population tolerance from 5%

Put the opening broadcasts on You Tube!

May 12th, 2015 at 1:00 pm by David Farrar

The NZ Herald reports:

Television New Zealand says it should be allowed to drop some of its election coverage because of terrible ratings.

The broadcaster has long been required by law to broadcast political parties’ opening and closing election addresses.

But it says viewing patterns have changed and a sharp fall in ratings during the presentations – once central campaign events – justifies a change.

During the last election the opening addresses had ratings that were 38 per cent lower than the average for the six previous Saturday evenings.

Who watches them? People now have a choice of channels and they wisely choose to change the channel when they come on.

Rather than require TVNZ to broadcast them, just have the parties release them on You Tube, and those who want to watch them, can do so.

The rise of the internet and social media has diluted television’s role as the key method of communication with voters, TVNZ notes, and audiences are increasingly uninterested in the opening and closing statements, the spokeswoman said.

Yep. And taxpayers have to pay TVNZ for the statements. Let’s save money and scrap the requirement.

Labour leader Andrew Little said TVNZ’s position confirmed the need for a genuine public service broadcast channel.

Television still carried a large audience and the addresses were part of a healthy democracy, Mr Little said.

By health democracy, Andrew means taxpayers should be forced to fund and broadcast propaganda for his party!

However, Steven Joyce, campaign manager for National during the last election, said he would be open to the addresses being scrapped.

There was a significant production cost, Mr Joyce said, and perhaps parties could be given additional advertising if the addresses were to go.

Or one could save money and get back into surplus quicker.

UPDATE: Corrected by AG that taxpayers do not reimburse TVNZ for the opening statement. However I guess we still pay for it, as the get reduced advertising revenue which impacts overall government revenue.

George FM in trouble

October 9th, 2014 at 11:00 am by David Farrar

The Herald reports:

The Electoral Commission has referred Mediaworks to police after a broadcaster on George FM urged people to vote for the Green Party on election day.

The commission said the Auckland-based station broadcast statements on September 20 which were intended to influence people how to vote before the polling booths closed – a breach of electoral rules.

In a statement, the commission said it also took the view that the short broadcast by George FM was an election programme, which was a breach of the Broadcasting Act.

A Mediaworks spokeswoman said the company took its responsibilities as a broadcaster seriously, and trained its staff about election day rules.

“Unfortunately on Saturday 20th September, one of the announcers on George FM was a volunteer, and was unaware of their responsibilities under the Electoral Act.”

At 4.50pm on election day, the volunteer said on air that he had voted for the Greens and encouraged listeners to do the same and vote out the National-led Government.

It staggers belief that someone could think it is okay to broadcast on air on election day that they want listeners to vote for the Greens and vote National out.

Do we need a competency test for voting?

September 18th, 2014 at 1:00 pm by David Farrar

Stuff reported:

The family of an intellectually disabled woman is alarmed her carers are supporting her to vote in this year’s election – despite her having the mental age of a 2-year-old.

But disability advocates are backing her caregivers’ actions, saying the voting rights of people with intellectual disabilities should be protected.

Patricia Hallett’s family was informed via text last week that her carers planned to take her to a polling booth to vote.

The 62-year-old lives in Auckland under the permanent care of IHC subsidiary Idea Services.

Nephew David Hallett, of Ngahinapouri, said it was “ridiculous” the law allowed his aunt to vote and feared others with severe intellectual disabilities could be unduly influenced at the voting booth.

Patricia Hallett was left brain damaged after contracting meningitis as a child.

Her affairs were managed by her brother under power of attorney.

“My aunt can’t make any kind of decision whatsoever and should be a disqualified voter,” David Hallett said.

“My 2 -year-old child has more cognitive ability in terms of reasoning but I know how easy it is to influence him with a little suggestion.

This is a difficult issue. Obviously many people with intellectual disabilities are capable of making an informed vote. But others are not. How do you protect those incapable of making an informed vote from coercion?

Should there be a competency test? Or is the small number of people involved insignificant?

UPDATE: This issue has become more significant. Stuff reports:

A large-scale provider of care for the intellectually disabled has been accused of openly influencing the voting of residents in their care.

A former community support worker at Idea Services said carers actively encouraged residents to vote Labour and schooled them on what boxes to tick on their ballot paper.

The Waikato-based worker, who declined to give her full name for fear of reprisals, said Idea Services management pressured carers to vote Labour and also directed them to influence how residents voted.

Idea Services is a subsidiary of IHC.

“By the time they [clients] get taken to the voting booths, they already know the colour that they have got to vote for,” the former staffer said. “They get told things like you can vote for whoever you like but Labour is the only political party that cares what happens to you.”

That’s disgraceful, if correct.

 

Bradbury enrolled twice

September 8th, 2014 at 9:45 am by David Farrar

bradbury-630x354

Whale Oil has blogged:

Sometime last year, a little birdy told me that Martyn Bradbury of The Daily Blog, funded by unions and the MANA Party, as well as being paid to be Kim Dotcom’s Internet party strategist, was on the electoral roll twice.

Mistakes happen.  So I decided to wait.   Because closer to the election, you get sent the nice enrollment pack by the Electoral Commission to confirm your details.

After this phase, I waited for the new rolls to come out.  And what would you know?  Martyn didn’t take the opportunity to correct the fact he is on the roll as two different people.  (Unless he has a twin brother called Martin we have never seen or hear of living with him at the exact same address?)

The original double enrolment may just be a mistake, but as every person on the roll knows, you get sent a letter from the Electoral Commission asking you to check your details. Bradbury would have received two letters (probably on the same day), yet has done nothing as he is still on there twice.

Also people may note that despite it being public info, Cameron has redacted Bradbury’s address.

I’m sure Martyn/Martin will explain it all away as a mistake, but the question remains – why didn’t he correct it when he got two letters from the Electoral Commission?

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, police 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.

Why we need an electoral law change

August 13th, 2014 at 9:00 am by David Farrar

The Herald reports:

Soul and blues star Darren Watson’s satirical song Planet Key appears to have been banned from being broadcast.

Guitarist singer and songwriter Mr Watson’s song and its animated video by Jeremy Jones released last week pokes fun at the Prime Minister and his Government.

It features Mr Key playing a stinging blues guitar solo on an endangered Maui’s dolphin while an oil rig explodes in the background. It also depicts Finance Minister Bill English carrying Mr Key’s golf clubs and the Prime Minister plays golf with Barack Obama.

But Mr Watson posted on Facebook this afternoon that he had just had a “super interesting chat with The Electoral Commission just now”.

“It appears we may be gagged.”

He later posted that “the story is the Electoral Commission have advised a Access Radio station not to play Planet Key as it may be a contravention of the act.”

Hamilton’s Free FM station manager Phil Grey told the Herald the station had played Mr Watson’s music before but when it recently received a copy of the song, because of its content, the station’s programme director asked for the Electoral Commission’s opinion on whether it breached electoral rules.

“She got a communication back saying that outside of a topical news item about the song, airplay of that song would be considered to cross the threshold to be considered an electoral programme.”

The Electoral Commission is correct, in my opinion, in terms of the law.

However that is why I think the law should be changed.

We have archaic electoral laws that treat the broadcast medium as different to other mediums. All political advertising is banned on broadcast media, except those ads funded by the taxpayer through the broadcasting allocation, Effectively this means the state has a monopoly over broadcast advertising.

We should change the law to allow anyone to run advertisements on radio or television, so long as they identify themselves.

Of course the John key parody video can be viewed online. I blogged it here myself a few days ago.

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.

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.

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.

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.

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.

 

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.

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.

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.

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.

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.

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!

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.

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.

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!]

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.