Kiwiblog

Former Clerk of the House and expert on Parliament, David McGee, has done a submission on the Electoral (Administration) Bill – mainly focusing on whether the Electoral Commission should be an Officer of Parliament.

I suggest to the Committee that they should get advice from Mr McGee, and am glad they did – even though in this case his advice differs from my preference.

McGee says in his submission:

In my view there is no question as to the Electoral Commission being important enough to warrant Officer of Parliament status. The constitutional arguments for that status that have been made to the Committee are compelling. Nor would I see creating the Electoral Commission as an Officer of Parliament departing from the principle of conferring that status jealously. The fact that the Commission was an Officer of Parliament would not open the door for others to obtain that position inappropriately.

But he sees pragmatic, rather than constitutional, problems:

1. The Commission delivers a programme – organising a general election, unlike other Officers of Parliament that are more Auditors or checks.
2. It may politicise the role of Speaker (as responsible Minister) further, and also the Speaker can not be held responsible for their performance through oral questions.
3. With three Commissioners, would the Commission itself or the Commissioners be the actual Officers of Parliament – not well suited for a board model.

On the assumption the Electoral Commission remains a Crown entity, McGee looks at the proposed method of appointment:

I consider that (if a mandatory judicial appointee is not to be retained) the members of the board should be appointed on the recommendation of the House. (This would replace the consultation proposal in new section 4D(4)). There is nothing inconsistent in an ICE or non-Officer of Parliament being appointed in this way. The Independent Police Conduct Authority and the Judicial Conduct Commissioner are appointed following a resolution of the House, yet neither is an Officer of Parliament.

Appointment by Parliament is preferable to appointment by Minister only.

The fact that appointment is statutorily made on the recommendation of the House does not in itself mean that that recommendation will be unanimous or even bi-partisan. It can still occur on a straight majority vote. But, in practice, this has not been the experience with such appointments. Prior consultation has smoothed the way for non-contested resolutions. It has been suggested to the Committee that there be provision for a “super-majority” of 75% agreement written into the legislation. This would certainly ensure that any appointee had the confidence of the larger parties at least and is consistent with other super-majority provisions (the reserved provisions) in the Electoral Act.

My strong preference is for a double super-majority of 75% of the parties and 75% of the MPs.

But I do not favour this. I think that the House (through the Standing Orders Committee) has an opportunity to develop a convention – essentially a protocol – on non-Officer of Parliament appointments which are made on the recommendation of the House. After all if an appointment is important enough to involve the House there should be some expectation that an attempt will be made to achieve consensus on the appointment. As long as this device is not over-used (and achieving consensus is not easy and could stymie the appointments process if attempted too frequently) it is worthwhile having in place an agreed process for consultation on potential appointees and an understanding that a name will only be proposed if there is a considerable element of cross-party (not necessarily unanimous) support.

This is an interesting alternative. I did not realise that at present there is no requirement for agreement (beyond a simple majority) for roles such as the Ombudsman, and Auditor-General.

While such a protocol would be useful, I don’t see it as an adequate substitute for an actual legislative requirement of wide-spread parliamentary agreement.

The reason for this is it is much harder to repeal law than it is to ignore a protocol. Up until 2007 there was a protocol that major changes to the Electoral Act were subject to bipartisan consultation and agreement. Labour annihilated this protocol in 2007, and while Simon Power has reinstituted it, I would rather have a legislative safeguard to bind his successors.

The NZ Herald slams the latest stunt by the anti-whaling activists:

Peter Bethune knew precisely what he was doing, and the consequences, when he boarded the whaling vessel Shonan Maru 2 to make what fellow-protesters described as a citizen’s arrest of its captain. …

Mr Bethune was intent simply on grabbing publicity. He, and the Sea Shepherd Conservation Society, wanted to prompt a diplomatic incident, thereby putting further pressure on the Japanese to end whaling. …

The Dominion Post argues against a city wide liquor ban:

On one of Wellington’s rare balmy nights there is little to compare to a quiet picnic on the south coast, watching the sun go down and the kids paddle in the surf as you enjoy some cold roast chicken, a nice green salad , and a glass of Martinborough’s best sauvignon blanc.

Soon that pleasure may come with the dubious frisson of being a law-breaker, and the prospect of a visit from police to tell you you are breaching a Wellington City Council bylaw. Under the proposed liquor ban, the wine has to be tipped out on the sand, or the picnic packed up and moved to a non-public place. If you refuse, you will be arrested. If you wait till police go away and then carry on enjoying your picnic, you will be arrested should they return.

That is the future that could face Wellingtonians should the city council go ahead and pass its city-wide booze ban.

It’s a daft idea that should be shot down. Have outdoors liquor bans in areas where there is a problem.

The Press talks about the future of their regional council:

Environment Canterbury chairman Alec Neill managed to put on a brave face after the damning report into his institution’s performance and governance yesterday. The reality is that if the Government adopts the recommendations in the report, ECan as we know it today will be gone. …

The report will provide vindication for the region’s mayors, business figures and farmers, who have been queuing up to slate ECan for some years.

They would also agree with the comment of review leader Wyatt Creech that ECan had a “fortress” and “we know best” culture. …

I predict it will be gone.

The ODT talks about electoral issues:

It will be recalled that, in 2005, the Exclusive Brethren attempted to influence the outcome of the poll by mounting a covert and costly campaign against the Greens and Labour.

Labour had also been concerned about the extent to which campaign finance was both anonymous and uncapped, raising the spectre, it claimed, of “big money” interests tilting the odds against a fair contest: the even playing field argument.

In an attempt to close loopholes in the campaign finance rules, and to prevent parties “jumping the gun” and subverting the spending caps, it also created a controversial regulated campaign period of three months prior to polling day.

Ummn, no. That was the old regulated period. Labour extended the period to be all of election year.

As Helen Clark was appearing at the same time in a different select committee, the total number of media at Justice & Electoral was one – from Select Committee News.

There were eight written submissions, and three of us also made oral submissions. We all supported having the Electoral Commission as an Officer of Parliament, and/or having a requirement for any appointments to have widespread parliamentary support.

The Committee indicated they were favourably inclined to the notion that the requirement the Minister of Justice not consult other parties over any appointments to the Electoral Commission, should be strengthened to gaining approval from most of the other parties (myself and Andrew Geddis suggested approval from leaders of parties representing 75% of MPs and 75% of the parliamentary parties should be the level required).

They also indicated they are seeking further advice on whether the Electoral Commission should be an Officer of Parliament, like the Ombudsman and the Auditor-General. The Ministry of Justice seems to have been rather anti this in their background papers, and I felt the pros and cons had not been adequately investigated. It is pleasing that the Committee may do so.

So I’m pretty confident we will not end up with a situation where the Minister of Justice can unilaterally appoint the person who runs our electoral system. For scare tactics I joked about the possibility that Simon Bridges as a future Minister of Justice (but I accidentally called him Simon Power which confused people) could appoint me as Chief Electoral Commissioner – and how I am sure Labour MPs would want to get to have a vote on that

Looking at the written submissions, those calling for the Commission to be an Officer of Parliament (rather than appointed by the Minister of Justice and accountable to him or her) include the former CEO of the Electoral Commission, a former long-term staffer of the Commission, the former Labour Party General Secretary (Mike Smith), Professor Andrew Geddis, the NZ Law Society and myself. Now I’m not sure there are a lot of electoral issues we would agree on between us, so I hope our collective submissions agreeing on this point, have had some impact.

The NZ Herald wants the MMP referenda held earlier:

There appears to be no reason the final referendum could not have been held a year or so after the 2011 general election if the first found a majority wanting change. A new system, if favoured in the decisive vote, could then be used in the 2014 election, rather than waiting as long as 2017.

I disagree. The first referendum is likely to have a low turnout, if not held in conjunction with an election. We found this out in 1992.

I do think there is an argument for the second referendum (if needed) to be held before 2014.  As that will be a simple referendum that will change the electoral system if change is voted for (the earlier referendum is only about if there is a second referendum, and what that is), I think that would achieve a very high turnout even if held separate to an election.

Also, without an election at the same time, the public would be more turned into the pros and cons of the two choices. A change of electoral system si so important, that it almost deserves to have its own debate, not cluttered up with a general election.

So my growing preference is the first referendum in 2011, with the election (to maximise turnout), but have the second referendum in 2012.

If the 2012 referendum votes for change, I am not sure one could implement it in time for the 2014 election, due to boundary changes. But one way you could deal with that is to have the Boundaries Commission (which should start work in late 2011) to prepare boundaries for both options, which would allow them to be finalised in 2013.

The Dominion Post compares Kiwirail to Fawlty Towers:

Kiwirail is to the transport industry what Basil Fawlty is to the hospitality trade.

It treats its customers as impediments to the smooth running of its business.

Current management can be excused responsibility for the creaking trains and dilapidated tracks in the Wellington region.

They are the consequence of 40 years of neglect by public and private owners of the rail system. But KiwiRail bosses cannot escape responsibility for the way customers are treated.

If they are not left waiting on the platform for services that have been cancelled, they are shut in trains that have mysteriously stopped part way into their journeys. Either way, they are kept in the dark.

Who would have thought a subsidised monopoly would give bad service?

The Press examines the electoral finance reforms:

The Government’s proposed new electoral finance system is a mixed bag.

Compared to the Labour’s now repealed Electoral Finance Act, which was a knee-jerk reaction to the covert 2005 Exclusive Brethren advertising, it gives greater freedom for lobby groups to conduct parallel campaigns.

But the new regime has swung too far towards a laissez-faire approach and does create the danger that money could play too great a role in New Zealand politics.

The most unwelcome feature of the new regime would be the absence of advertising spending limits for lobbyists, who are technically but confusingly known as third parties. The preceding legislation imposed a cap of $120,000.

Although few lobbyists came close to this limit in the 2008 election, the lack of a cap might tempt interest groups from across the political spectrum to spend up large in an effort to influence future campaigns. It is also inconsistent with the position of political parties which do have a spending limit. …

But it is also important for voters to know how much lobbyists have spent. In this respect the registration requirement provides only partial transparency, as lobby groups will not have to submit returns on their advertising expenditure.

I don’t have a problem with those who register, disclosing their total spend. That can be something the Select Committee looks at. I prefer transparency to restrictions.

But the Government decided not to amend the taxpayer funded broadcasting allocation system for political parties. Worth further thought is allowing parties to spend their allocations on advertising in newspapers, not just in the broadcast media.

Sadly Labour and the Greens opposed reform of the broadcasting allocation.

The ODT reflects on Michael Swann:

Last week, the people of Otago were served a timely reminder of white collar crime with the sentencing on additional charges of convicted fraud Michael Swann in the High Court at Dunedin.

It will be recalled that Swann was sentenced last year to a nine-and-a-half-year prison term for defrauding the Otago District Health Board of almost $17 million between 2000 and 2006.

On Friday, he was sentenced to 20 months’ imprisonment – concurrent with his present term, meaning that he will in fact serve no extra time behind bars – for accepting $755,000 in bribes from long-time friend and business associate Robin Sew Hoy.

Makes you wonder the point of the additional prosecution!

At 6 pm off to an ASPG event at Parliament on how the relationship between Parliament and the Executive — how it has evolved over the past 20 years and where the relationship might head over the next 20.

At 9 pm will be at Backbenches, where I’ll be doing a 60 second soapbox on the issue of the NZ Flag. I’ll even have some Canadian and Australian flags with me as visual props!

Tomorrow morning I’m one of three submitters appearing on the Electoral (Administration) Bill between 10 am and 11 am in Bowen House. This is the bill that merges the Electoral Commission with the Chief Electoral Office. The major issue all three submitters (The other two are Andrew Geddis and the NZ Law Society) have raised are that the new Commission should be an Independent Officer of Parliament, or the very least the appointment of Commissioners should not be decided by the Minister of Justice, but require parliamentary agreement.

The Herald says electoral law reform is on the right track:

The government has gone the right way about electoral finance reform, consulting all other parties as the previous Government did not.

Inevitably, therefore, the decisions announced yesterday contain some comfort for parties such as Labour that fear private money in politics, and some disappointment for those who welcome all contributions to public life.

My concern is that a future Labour Government will not be as restrained as National has been, and will force through changes that benefit them, even if other parties are opposed. What would be welcome is for Labour to make a clear declaration that they will not in future push through electoral law changes without a political consensus behind them.

There will be no relaxation of the restrictions on election broadcasts, which can be made only by political parties that have to make them with public money and must be kept within the amounts allocated.

It would be better to let, in fact insist, parties use their own money for television and radio commercials, or let them use public funding for any form of advertising they prefer. But Labour and the Green Party were strongly opposed to any change.

I agree. It is very disappointing that no change is recommended. I hope the Select Committee will be open to persuasion.

The decisions announced yesterday do not appear to go far towards resolving the misuse of parliamentary funds for election purposes. The usual rule is that parliamentary information money can be used to push party barrows as long as the material does not expressly urge a vote, a donation or membership of a party.

It is well past time a tougher test was imposed, and not just within three months of an election, which is the best we can expect from this exercise.

I think the likely tougher test during the regulated period would be a huge improvement. I do not think it is practical to have this tougher test during the entire electoral cycle as almost every publication put out by parliamentary parties has an element of seeking to influence voters towards them.

The Press attacks the Sea Shepherd publicity stunts:

Most New Zealanders recognise for the self-serving farce which it is the Japanese notion of scientific whaling and are appalled by the view that in order to conduct research into whales it is necessary to kill them.

But most people also believe that international pressure and setting, as New Zealand is doing, an example of non-lethal research are more likely to end whaling than the confrontational antics of the radical Sea Shepherd conservation group.

I hate the hypocrisy of the Japanese claiming the whaling is scientific research, but I hate the lunatics of Sea Shepherd even more.

The Dominion Post does not want the taxpayer funding an America’s Cup bid:

Prime Minister John Key says the Government might back a bid as its Labour predecessors did in 2003 and 2007. Labour put $30 million into the underfunded 2003 defence, $34m into the unsuccessful 2007 challenge in Valencia, and, immediately after that loss, pledged another $10m to Team NZ to stop crew members being poached.

Mr Key should think again. It is not the role of government to fund the sporting pursuits or obsessions of millionaire yachtsmen.

The time to put money into the cup was when there was a realistic prospect it would generate a financial dividend. That time has passed.

The cup is of sporting interest to only a small number of New Zealanders. The rules are obscure – and endlessly up for interpretation in court – the competitors are remote and the action is incomprehensible without a television set, computer graphics and the services of commentator Peter Montgomery.

The event’s primary attraction is as a magnet for the world’s wealthy. Hosting the 2003 regatta was reputedly worth $529m to Auckland businesses. The New Zealand team performed commendably in 2007, winning the challenger series and winning two races in the best of nine contest with Alinghi for the cup itself.

But with many of New Zealand’s best sailors now sailing for foreign syndicates and foreign billionaires lining up to bankroll challenges, the prospect of Team NZ again winning the cup is so slight that the Government should forget it.

I agree. Kiwis keep winning the Cup – but not for NZ syndicates.  Leave it to the billionaires to fund.

The ODT examines colonoscopies:

The report on the 33 colonoscopy patients and the Otago District Health Board is a mixed bag. It gives all sorts of detail about the board service, or lack of service, but it fails to spell out answers to basic questions about these patients.

Did the board provide timely and adequate colonoscopies? And was the treatment of these patients according to board and national criteria? What the report does say is that those audited did have “prolonged journeys” through the public system.

In “report speak” that seems to be saying that the answer to the first question is no.

Check early and check often!

Colin Espiner writes:

Voters are set to be bombarded by record levels of advertising during the next election, after Government moves to relax some campaign spending rules.

Bzzzt. I really wish one would not treat an opinion as a fact. As no third party came close to spending the $120,000 limit last time, it does not follow that having no limit will lead to record levels of advertising.

In a big change to the former Electoral Finance Act, National is proposing to allow lobbyists, such as unions or special interest groups, to spend any amount during election campaigns – provided they register with the Electoral Commission and identify themselves in their advertisements.

I will make a prediction now. The vast majority of third party spending will be unions advertising against National. In Australia the unions spends ten times as much as any other groups.

The move could see a return to the sort of high-spending negative campaign run against the Greens by the Exclusive Brethren during the 2005 election. In addition, lobby groups will be able to advertise for as well as against political parties – raising the possibility of “back door” donations that get around the limits on what politicians can spend.

This is just plain incorrect. A third party can not advertise in support of a political party unless the party agrees, in which case the spending counts as part of the party’s spending under their limit.

You can not get around the spending limit for advertising in favour of a party, by having a third party do it.

But the advertising can only take place in non-broadcast media, after the Government decided to keep current limits on broadcasting during campaigns in place.

They are not limits. They are a ban. The ban incidentally is almost certain to be inconsistent with the Bill of Rights Act.

Simon Power has also announced details of the MMP referenda.

1. Referendum in 2011 will ask whether they wish to retain the present MMP voting system.
2. A second question will ask what alternative voting system they would prefer from FPP, PV, SM and STV, regardless of how they voted in the first question.
3. If people vote not to retain MMP in 2011, then a run-off referendum in 2014 will be held between MMP and the preferred alternative.
4. If people vote to retain MMP, the Electoral Commission will be asked to review our MMP system and recommend desirable changes.

Two issues I think the select committee should consider:

1. Should the second question on alternate voting systems be a preferential vote? I think it would be better if it was, ensuring that the most widely supported option runs off against MMP.
2. Can the 2014 date for the second referendum be held earlier? I initially had the view it must be with the 2014 election, as that ensures a high turnout. However upon reflection I think the second referendum will get a very high turnout even if not at the same time as an election.

Simon Power has announced the Government’s electoral finance reform package:

The Government has today announced its reform package for electoral finance laws.

Justice Minister Simon Power says the decisions are the result of a thorough process.

“The package comes after extended consultation with all parliamentary parties and the public.

“As a result, Cabinet has decided to progress reforms only where there is broad public and political support.

“If we are to have a system which is fair, workable, enduring, and in place before the 2011 election, broad consensus is essential.”

Sadly, this means that many good reforms are not occurring. I will detail these below. There are some useful changes, but I am frustrated that some really stupid parts of the law are remaining.

However I have great sympathy for the need to have broad support for the electoral law, so that changes to electoral law do not become the ultimate prize of the victor, trying to skew the playing field to keep them in power (as Labour did with the Electoral Finance Act).

Effectively Simon Power (and Cabinet) has given Labour a veto over major reforms. I don’t like the outcomes this has led to, but do think it is generally the right thing to do, to not force changes through which don’t have widespread support.

It is the polar opposite of what Labour, the Greens and NZ First did with the Electoral Finance Act.

The Cabinet paper is here. Major aspects are:

1. Parallel campaigners who spend more than $12,000 must register with the Electoral Commission, but there is no spending limits of such campaigners.
2. Spending limits for parties and candidates to be inflation adjusted for future elections, but no increase to compensate for the lack of such adjustments since 1993.
3. The definition of an election advertisement will exempt personal political opinions on the Internet
4. One does not have to use your home address on election advertisements
5. The Electoral Commission can give advisory opinions on the legality of proposed advertisements
6. A new requirement that parties disclose all their income from donations in bands, including those below the disclosure threshold
7. Include an associated persons test to make it harder to do what NZ First did, and not disclose donations as they were from seperate companies, even though they had the same owner.
8. No change to the regulated period or the broadcasting regime.
9. A proposal to align parliamentary and electoral advertising rules

My thoughts on the changes are as follows:

1. A pretty major win with no limit for parallel campaigners. It is not that I want third parties spending huge amounts of money for or against a party (the unions tend to be the biggest spenders) but that it is wrong for MPs to legislate to restrict the amount of criticism that can be advertised against them. Also the public are quite capable of forming their own views about very expensive campaigns.
2. The lack of any change to the broadcasting regime is hugely disappointing. It is quite simply wrong that parties can not purchase their own advertising on radio or television, and also that effetively the major parties get a higher overall spending limit than smaller parties.  I also think it is wrong that current parties in Parliament get so much of the broadcasting allocation. Labour and the Greens refused to back change here, so the Government did not proceed.
3. I am rather pleased with the decision to have further transparency with donations, by having disclosure in bands of all income. I proposed this at both stages of the review as it will give the public a more accurate picture of a party’s funding. It will be interesting to see under the OIA who else, if anyone, proposed this.
4. The associated persons test for donations is very much needed to prevent what NZ First did.
5. The lack of an increase to party and (especially) candidate spending limits is regrettable as they are too low, and prevent candidates from being able to do even basic communications such as direct mail. Even the Green Party supported retrospective inflation adjustments back to 1993, but Labour did not support this, so it did not proceed.
6. While it is good the length of the regulated period has not increased from three months, I am astonished they did not go for a fixed start date of 1 August to avoid the current problem of candidates not knowing when the regulated period starts until they are halfway through it. I will be interested to discover under the OIA why this change did not occur. As far as I can tell from the Cabinet paper it may have been technical problems with snap elections.
7. Allowing the Electoral Commission to issue advisory opinions on advertisements is very welcome. It should be difficult to breach the law.
8. Also very sensible to allow a non-home address on advertisements so long as one can still contact the identified promoter.
9. There is a proposal that Parliament ban use of parliamentary funds, during the regulated period, on any publicity material that can be deemed electioneering under the Electoral Act. I strongly support this and proposed such an action. Outside the regulated period only material which explicitly calls for votes (or members or money) is banned, but during the regulated period anything which even appears to encourage support for a party or candidate will not be able to be funded by the taxpayers.

I back the change package as announced, and will submit on them. My criticism is about the changes not made. Hopefully over time a consensus can be gained to do further reform.

Paul Quinn won the ballot so his Electoral (Disqualification of Convicted Prisoners) Amendment Bill will be introduced and go to a first reading.

I’ve asked for a copy of the bill. Presumably it bans all prisoners from voting, not just some of them as is the case presently.

If you do a crime bad enough to go to prison, I think it is repugnant that you still vote. I even think there is a debate to be had about whether there is a period of non voting for those released from prison, if they were convicted of very serious offences.

UPDATE: The bill is here – Electoral _Disqualification of convicted prisoners_ Amen. At present only prisoners serving a term of three or more years are disqualified, and this would extend the disqualification to enrol to anyone currently in prison.

I assumed that a by-election in the UK is automatic, like they are in NZ, but I find out from No Right Turn that the House has to pass a motion to issue the writs for a by-election, which allows the Government to delay or in theory not even have a by-election.

Now in NZ, a by-election is automatic unless the House specifically votes not to have one, as a general election is due within six months. This can only be used if the writ for the current Parliament is due to expire within six months of the vacancy being declared in a seat, or if the PM tables a statement announcing the date of the election, and that date is within six months.

In the UK they also operate a six month rule, but by convention – not by statute. This does allow a Government to go outside the convention and NRT cites a case where they delayed a by-election until the polls were better.

While our Electoral Act is still far from perfect and needs a full rewrite for MMP, it is nice that we have more rigorous laws than our “mother”.

The Ministry of Justice has just released to me (thanks to the officials) under the OIA the background papers on electoral finance proposals to date. Still working my way through them, but one stands out as interesting.

It is a paper from the Parliamentary Service dated 2 September 2009 on aligning the definitions of what is election advertising for both parliamentary and Electoral Act purposes.

It reveals that the Parliamentary Service proposes that the standard definition of explicit electioneering (for purpose of being able to use parliamentary funding) will continue to be narrowly defined (the status quo is no explicit solicitation of votes, money or members) but that during the regulated period this will change to a broader persuasive definition.

This is a very good move, as it would not allow pledge cards and the like to be funded during the regulated period. In fact it would prevent parliamentary funding (during the regulated period) any publications that might be seen to persuade someone to support a party.

This is in the fact the position I have long advocated. It would be too restrictive to have the broader definition through the entire three year electoral cycle (it would be unworkable and probably ban MPs newsletters) but once you get close to an election, then any material which is persuasive would not be allowed.

Now this is only the proposal of the Parliamentary Service, and has yet to be adopted by the Parliamentary Service Commission itself. Hopefully they will do so.

If the regulated period is set to start 1 August in election year, it would mean the status quo applies up until 1 August 2011, but after 1 August 2011 the Parliamentary Service could refuse to approve funding for any material that is seen to be persuading people to support a party. This will limit a party’s ability to use taxpayer money to find their election campaigns.

Submission on the Electoral (Administration) Amendment Bill close on Thursday 10 December 2009.

My submission is below:

SUBMISSION OF DAVID FARRAR
TO THE JUSTICE AND ELECTORAL SELECT COMMITTEE
ON THE ELECTORAL (ADMINISTRATION) AMENDMENT BILL

About the Submitte

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.
2. I have over 15 years experience with the Electoral Act.  As a former parliamentary staffer I advised National Prime Ministers and Opposition Leaders on the Act.  I have been an electorate campaign manager and a national campaign staffer, requiring intimate knowledge of the Act. I also have blogged extensively on electoral issues.

Executive Summary

1. I support the Electoral (Administration) Amendment Bill, congratulate the Government on introducing it, and urge the Select Committee to pass it.
2. I do propose one small, but significant change, relating to the appointment of the members of the Electoral Commission so that the Minister of Justice must gain the consent of the majority of parliamentary leaders, not just consult with them.

Specific Comments

1. This bill is long overdue. A combined electoral agency was first recommended by the 1986 Royal Commission into the Electoral System. It was also agreed in principle by the Government in 1994 (in 1997 they changed their mind). In 2000 it was proposed by the Ministry of Justice and again in 2001 by the Election Framework Taskforce
2. I agree with the decision to only merge the Electoral Commission and Chief Electoral Officer at this stage, and after the 2011 election to also merge the Chief Registrar of Electors.
3. Of the three models for the (new) Electoral Commission, my preferences in order are 1) Independent Officer of Parliament, 2) Crown entity, 3) Within the Ministry of Justice
4. I note the Ministry of Justice has advised that establishing the Commission an Independent Officer of Parliament could not be done in time for 2011. If this is the case, I would not advocate that one delay the merger to go with this model, however I would urge the Committee to ascertain exact details of why the Ministry says this model could not be completed in time.
5. I also note the assertion that the functions of the agency do not match the criteria for an Officer of Parliament as set by the Finance and Expenditure Select Committee. Notwithstanding that, I believe the independence that an Officer of Parliament would give the Commission is highly desirable, and that the criteria should be reviewed.
6. It may be useful to solicit advice from the current and former Clerks of the House, as to whether or not they believe the Electoral Commission would be a suitable Officer of Parliament.
7. My main reason for preferring the Commission to be an Officer of Parliament is that it ensures any Commissioners have the support of a majority of Parliament, not just the Minister of Justice.   If this model is not feasible, then I would advocate that the Crown entity model require the Minister of Justice to gain approval, not just consult with, other parliamentary parties.
8. I note from the departmental papers, that the original recommendation was for the Electoral Commission to have a sole commissioner. I believe it is safer to have a Board and a CEO model (as proposed), and support this remaining.
9. Clause 4D(2)(b) provides for one of the Commissioners to be appointed as Deputy Chair of the Commission, and that this person can not (obviously) be the Chair. I would propose that the Deputy Chair should not be the Chair or the Chief Electoral Officer. In a Board/CEO model it is undesirable for the CEO to be even the Acting Chair. It would be simpler and cleaner to simply have each of the three Commissioners to have a distinct role – Chair, Deputy Chair, and CEO (Chief Electoral Officer).
10. 14. Clause 4D(4) states “Before recommending the appointment of an Electoral Commissioner, the Minister must consult with the parliamentary leaders of all political parties represented in Parliament.”
11. The early papers from the Ministry do not even provide for the Minister to consult parliamentary leaders. This requirement was added on, presumably at the request of the Minister or Cabinet Domestic Policy Committee. It is commendable the need for consultation was accepted by the Government.
12. However I believe it is desirable for the Minister to not just consult, but to gain approval of a super-majority of parliamentary leaders. While the current Minister has shown considerable integrity in his dealing with electoral issues, this does not mean a future Minister would do the same, and they might appoint a Commissioner over the objections of other parliamentary parties.
13. The expanded powers of the Electoral Commission make the need for wide parliamentary acceptance of Commissioners even more vital. The current Electoral Commission has little role in the actual running of the elections compared to the Chief Electoral Officer. And the current Chief Electoral Officer is appointed by the Secretary of Justice who is appointed by the State Services Commissioner. This is well removed from political appointment. Under this bill, the Minister of Justice will directly appoint the person who primarily runs the NZ electoral system.
14. My proposed amendment is for the Minister to gain a double super-majority, so that Clause 4D(4) would state “Before recommending the appointment of an Electoral Commissioner, the Minister must gain the written approval of parliamentary leaders representing at least 75% of all political parties represented in Parliament and at least 75% of all Members of Parliament, and attach such approvals to the recommendation to the Governor-General.”
15. Electoral Commissioners should be of such unquestionable integrity, independence and competence that even having one parliamentary party oppose their appointment should give pause. However requiring unanimous assent to an appointment is undesirable as it may encourage unreasonable demands in return for support.
16. Requiring a double super-majority provides safeguards for both large and small parties. The requirement to have agreement from leaders of at least 75% of the parties in Parliament means that the two major parties can not decide on an appointment opposed by more than one small party. As the Commission decides issues such a broadcasting allocations, this is desirable. Likewise though the Government can not “gang up” with several small parties to make a appointment opposed by the major opposition party, as it is likely the major opposition party will always have at least 25% of the MPs. Hence this will encourage the Minister to put forward nominees that are widely supported and uncontroversial. This will protect both the Minister and more importantly the reputation of the Commission.
17. Some may assert that no Minister would appoint someone, if opposition parties had objected to the appointment when consulted. I have been told by former Opposition Leaders that this has occurred on a number of occasions. Hence this extra safeguard is not theoretical.
18. A current or former Judge has normally chaired the Electoral Commission. I am not convinced this is absolutely essential, but the Committee may wish to consider whether this is a practice they wish to depart from.
19. Finally, while outside the ambit of this bill, I would note that once the Electoral Commissioner has been fully integrated with the Chief Registrar of Electors, Parliament may wish to consider if it should play a significant role in local body elections. I think there would be considerable merit in handing it authority for local body elections, in conjunction with local returning officers in each authority.

In summary I urge the Justice and Electoral Committee to recommend the Electoral (Administration) Amendment Bill be passed, with an amendment requiring the Minister of Justice to gain the agreement of a double super-majority of parliamentary leaders for the appointment of Electoral Commissioners.

David Farrar

You can make a submission until 10 December on the Electoral (Administration) Amendment Bill.

The bill is generally excellent – it merges the Electoral Commission and the Chief Electoral Office, and allows the Commission to give advice on the legality of propose ads etc.

The one change I would like is to the method of appointment of the Electoral Commissioners. The current bill provides for the Minister to (effectively) appoint them after consulting with other parties. I would like to see the appointments either made by Parliament directly, or for the consultation requirement to be made an agreement requirement.

The reason is that different Ministers interpret a consultation requirement in different ways. I know in the 1990s that National consulted Helen Clark as Opposition Leader on some appointments and actually withdrew proposed nominees after Clark objected.

But when Margaret Wilson was Attorney-General, she was terrible. Her idea of consultation was to send a letter out Friday notifying the name of the person she proposes to have Cabinet appoint on Monday.

I was hoping some MPs would touch on this issue in the first reading, and they did:

Hon DAVID PARKER (Labour) : The Labour Opposition will be supporting the Electoral (Administration) Amendment Bill. I thank the Minister of Justice for the consultative process that has surrounded this bill. He has properly engaged with Labour, as, indeed, I am sure he has with other parties in this House in the preparation of this bill. As a consequence of that, Labour members are happy to support it in its reference to a select committee. Initially, the Electoral Commission, which is a new body set up by this bill and not the current Electoral Commission, was to include the Secretary for Justice as a member. Labour and, I understand, some other parties said that would not be right. Of course, the Secretary for Justice is the head of a Government department, so it would not be appropriate for that office holder to hold a role on the new Electoral Commission. The Minister agreed with that, so the commission will now be fully independent, and we agree that that is appropriate.

This is an example of good consultation. Simon Power had feedback from other parties, and modified the proposal. My concern is not about Simon as Minister of Justice failing to act on consultations. He won’t be Minister for ever, and my concern is some future Minister will act like Margaret Wilson and ignore any objections from consultation. That is why I think it should requirement agreement, not consultation.

I think there is still a question as to how the commission should be appointed. I have heard some people suggest that the commission ought to be appointed by Parliament, rather than by the Minister as part of the Government. I think that some people may submit on that issue to the select committee. We in Labour would be interested to hear from submitters and be informed by them on that matter.

I’m glad David Parker raised the issue, and hope that Labour will agree to a change – despite the fact they will be Government again one day.

The need for independence is even greater now, with the Chief Electoral Officer being one of the three Commissioners, as the CEO is the key individual who actually runs the election, and declares the result.

Previously the CEO was within the Ministry of Justice. So the State Services Commissioner appointed the Secretary of Justice and the Secretary of Justice appointed the CEO. While I don’t particularly like it being witin the Ministry of Justice, it did make it hard for a Minister to put in someone inappropriate.

Now though the Minister can appoint the Chief Electoral Officer directly. That is too great a power I submit.

METIRIA TUREI (Co-Leader—Green) : I do not intend to take a long call on the Electoral (Administration) Amendment Bill. The Green Party will support its first reading to get it before the select committee. We look forward to submissions by the public on the bill. …

When the National Government consulted the Greens on the proposal, we suggested from the outset that an Officer of Parliament – type body should be established, that it would be preferable to ensure that the new agency is absolutely and fully independent of the Government, and does not report to a Minister. The Officer of Parliament model is used here in Aotearoa with the Parliamentary Commissioner for the Environment, for example. It is also used in Canada for their electoral organisation and management. It places the oversight of the body with Parliament, as opposed to a ministry of the Government managed by one particular political interest. It reinforces its role to oversee and enable free and fair elections, which is a core concern of the House of Representatives and of Parliament. Certainly an Officer of Parliament model would be perceived by the public as more truly independent and would have more ability to comment on how the electoral process is operating, because it would not report to a particular Minister in the executive.

I agree with Metiria that the Commission is most suitable to be an Officer of Parliament. If this change is not practical in the short-term, than a fallback option is to at least require the Minister to gain agreement, not just consultation, with a super-majority of parties on appointments.

CHARLES CHAUVEL (Labour) :

There is also the police, and I will speak a little bit about their function, because the police are the enforcement body as far as our electoral law is concerned.

Although Labour supports this bill being read a first time, we believe that the bill does not address the issue of the enforcement machinery when there is a breach of electoral law. I suggest that that might be something the select committee looks at. The problem that the police always have, of course, is that electoral offences never go to the top of the queue. The police will always be concerned with crimes against the person, and with dealing particularly with violent crime. They will never be able to prioritise electoral matters, nor will they necessarily have the forensic expertise to do so. These days those questions require skills in dealing with tracking donations and financial disclosures, and so on, which call for quite sophisticated levels of skill that are probably more properly found in organisations like the Serious Fraud Office rather than the police. It might well be that with the forensic skills that are required, it would be useful to think about having an enforcement function under this new independent Crown entity rather than the police being responsible for that function, if we are truly interested in bringing all the functions together in an expert body that has the resources and the time to deal with the questions before it.

I agree with Charles that the Police do not see electoral breaches as a priority and it would be better with the Commission. However that is not so much an issue for this bill, but more for the bill which will come out of the Govt’s electoral finance review.

The final point I make is that if one has a look at the explanatory note, one sees that one of the options canvassed was to have an Officer of Parliament for this function. Personally, I think that would have been the most compelling option to go for. The explanatory note suggests there was not enough time to get that sort of apparatus going before the next election. But if we really want a truly independent body, charged with the conduct of elections in an honest and serious way, then, given the conduct of our other Officers of Parliament, in whom we have enormous faith, then that seems to me to be the best way to go.

Excellent.

What has been nice is that all the Opposition praised Simon Power for his consultation with them over the bill. It is great to see the merger happening after years and years of no action, and electoral law should be an area of bipartisanship as much as possible – it is too important to be treated as a bauble of office, as some sort of winner takes all prize.

I hope other people take the time to do a submission. If you don’t, then no complaining if you wake up one day in the future to read that Winston Peters has been appointed as an Electoral Commissioner

Simon Power has introduced the Electoral (Administration) Amendment Bill which merges together the Chief Electoral Officer and the Electoral Commission. After the 2011 election, they will also add in the Chief Registrar of Electors.

The new Commission will come into force on 1 October 2010. It will have three Commissioners appointed by the GG on the recommendation of the Minister of Justice. One Commissioner will be the Chairperson. Another will be the Chief Electoral Officer and Chief Executive of the Commission. There can also be a Deputy Chairperson.

The bill provides for the Minister to consult with the parliamentary leaders of all parties in Parliament, before recommending/making appointments.

I don’t regard this as satisfactory. While the current Minister I am sure would not appoint someone objected to by the other parties, the former Government often ignored objections by other parties with regards to their appointments.

I actually believe the three Commissions should be appointed directly by Parliament, and that the Commission should be an “Office of Parliament” not a crown entity.  The preamble states this was considered but rejected as not fitting the criteria. I plan to ask under the OIA for documents about why this was so.

I don’t think the Government of the Day should be able to appoint the Electoral Commissioners. The Bill even allows for the possibility that a Member of Parliament could be appointed to the Electoral Commission (which would vacate their seat).

I think the merger is a long overdue idea, and the Bill should 100% go to select committee. But I do hope serious consideration is given to making the appointment of the Electoral Commissioners more independent from the Government of the Day. Either they should be officially appointed by Parliament itself, or there should be a requirement or the Minister to obtain written consent to a recommendation from Leaders representing both 75% of the parties in Parliament, and representing at least 75% of MPs.

The NZ Herald editorial:

Until the Labour Government came to grief with its Electoral Finance Act, now repealed, many voters might not have realised how strictly elections were previously controlled in the interests of financial equality. …

The previous code, now back in force, limits the amount parties and candidates can spend on campaigns and particularly restricts parties’ access to radio and television. They are given a set amount of “free” time for opening and closing their campaigns and an allocation of public money for broadcast commercials. Parties are not permitted to use money they have raised themselves to buy more air time even if the spending would be within overall campaign limits.

Which is an antiquated restriction inherited from the days when the broadcast medium was all powerful. It is very very unfair that a party can not spend more money on broadcast ads than their allocation by the Electoral Commission.

National is part-way through a promised review of the law and has just published some options for public comment. It would retain public funding for party advertising either under present rules or with no restriction on the type of media in which the money can be spent and no limit on the broadcast time a party can buy from its own funds, provided it is within overall campaign limits.

And the latter option is preferable to the former.

A third option would allow parties to spend their public allocation for any election purpose, not necessarily campaign advertising. From there it would be a short step to full public funding of election campaigns. Once the taxpayers’ contribution ceased to be for a defined purpose, parties would soon press for public funds for all purposes.

I agree. I oppose that option.

If the review was being conducted independently of political parties we might be presented with another option: the end of this state-funding-by-stealth. There is no particular reason that taxpayers should have had to pay for the promotion of parties on television. It is nonsensical that even fringe campaigns can get on air by making an application on time. Let all contenders prove their worth by raising voluntary finance. And let them spend it where they think best.

I proposed a compromise. Have the funding available only to non-parliamentary parties, in recognition of the fact that parliamentary parties have a huge advantage. They get publicity over the whole three year cycle, and parliamentary resources such as MPs, staff and funding.

The previous Government’s vexed issue of “third party” campaigns – publicity for or against a party or on an issue that works to a party’s advantage or disadvantage – has not been resolved by the review so far. National, too, wants to regulate “parallel campaigns” as it calls them, but wants to make their spending rules simpler than those Labour laid down and “weighted in favour of freedom of speech”.

That is not quite correct. National has proposed two mutually exclusive options. One is for regulation and one is for the status quo of basically transparency only. I do not believe a case has been made that you need to regulate beyond transparency, and hope Cabinet will finally conclude to recommend no change.

And parallel campaigns should be allowed to broadcast during election periods.

I agree.

The red tape of electoral finance was hopelessly tangled even before Helen Clark got her hands on it. National is at least proceeding cautiously; the proposals offered for discussion until the end of the month are a response to comments on a paper issued in May. Public views will be invited again next year when legislation appears. Constitutional steps should be taken this way. It is for all of us now to have our say.

Indeed the existing law was far from perfect. As the Herald says, make sure you submit and have your say.

Here are the major proposals or options from the proposal document.

Broadcasting Allocation

Option 1 is the status quo of $3.2 million for political parties that can only be spent on broadcasting, and parties can not buy additional time.

Option 2 is moderate reform where the allocation can be spent in any advertising medium, and parties may buy additional broadcasting time.

Option 3 is significant reform where the funds can be spent on any purpose (not just election advertising) plus parties may buy additional broadcasting time.

Personally I would restrict access to the allocation to non parliamentary parties, but that is not an option.

Option 3 is effectively state funding of political parties, so I am not in favour. If we are to have taxpayer funds supplied, they should be for the express purpose of election advertising, not to pay people to administer the party.

I support Option 2 then, as it is the fairest, allowing parties to purchase time beyond their allocation and also allowing them a choice of medium.

I would suggest the amount allocated be set in legislation (and inflation adjusted) so a future Government can not just double or triple the amount allocated.

I was pleased to see the paper say:

While some submissions on the issues paper supported an increase in state funding to political parties, many submissions considered there was no case for additional state funding to political parties at the current time, particularly in light of the donations returns for the 2008 general election which demonstrate that some political parties are able to raise adequate private funds for their campaigning.

That was a point I made – the empirical evidence from 2008 is that there is sufficient private funding.

Parliamentary Service Funding

No change at this stage just  a desire to harmonise definitions of electioneering. I still believe the best way forward is to prohibit PS funding of any advertising during the regulated period.

Private Donations

No change. This is not entirely surprising. Personally I would have got rid of the ability to donate anonymously through the Electoral Commission.

This means the law passed by Labour and the Greens, as it applies to donations, will remain in force.

Campaign expenditure limits

The Government has decided in principle that the limits for party spending (currently $2.4 million effectively) and constituency spending (currently $20,000) should increase. They are seeking feedback on what level they should be set at, and also a desired mechanism to adjust the amount for future elections.

If you inflation and population adjust back to 1995, and include the $1 million broadcasting allocation then the party limit would be close to $5 million. I think $50,000 is around what you need at electorate level to be able to do even a basic campaign. That is a bit over $1/voter only.

Ideally the limits should be calculated using research on how much one needs to spend to reach x% of the population with a frequency of y.

Future increases should be based on inflation and population growth.

Regulated Campaign Period

Four options

1. Starts on Writ Day. This means a period of around five weeks. Would give PM’s party a huge advantage as they could spend up large before writ day knowing when it will be before others do. Mind you I doubt any party would come close to spending up to the limit for such a short period.
2. Starts on 1 August in the scheduled election year. This is my preferred option.
3. Starts on 1 May in the scheduled election year. I think this is too far out as it covers the period of the Government’s Budget and you don’t really hit campaign mode until after that.
4. The status quo of three months before the election. My least favoured option as it means you are halfway through the regulated period before knowing exactly when it starts.

The paper also canvasses two options for snap elections. Either have it retrospective to three montsh before the election date, or have it from the date of the announcement (which I favour).

Election Advertising

Definition will be based on 1993 Act’s definition of seeking to influence voting behaviour, and will be media neutral. It will not include policy advocacy that does not mention parties.

Exemptions will include media, personal correspondence between individuals, low cost merchandise (pens etc), personal opinions published on the Internet (or by text messaging), website maintained by parties and candidates and parallel campaigners (if registered), and anything put out by electoral agencies.

This seems quite good. The website exemption may seem strange to some, but it is hideous trying to work out what portion of a site is an advertisement and further it is a passive medium which people seek out – it is not like advertising that is displayed to people who are not seeking it.

All adverts will have name and full daytime address (but need not be home).

Parallel Campaigning

Two options.

The first is a “proportionate” regulatory scheme that has a high registration threshold and overall expenditure limits. Registered campaigners will not have to disclose donations to them as per the EFA. Registration restricted to NZ citizens, residents and organisations.

The second option is the status quo. No registration but you must identify yourself. This could possibly include restricting advertising to NZ citizens, residents and organisations.

While the first options is considerably superior to what was in the EFA, I am not convinced there is enough of a problem to change from the status quo. There was very little third party spending in 2008 and the main problem in 2005 was the lack of transparency by the Exclusive Brethren, not the fact they spent money.

Some will argue as parties have a limit, so should non parties. But the argument against that is the voting public will tend to discount the message anyway, if they perceive an inappropriate amount of money is being spent on a campaign. The public should be trusted – even the 15% who think Hillary is alive!

At the end of the day I think the spending by the EB helped the left, more than it harmed them.

Broadcast advertising by parallel campaigners

Two options again. The status quo is no spending is allowed. The other option is to allow parallel campaigners to advertise on TV and radio if there is a system of “proportionate regulation”.

I don’t like having to choose between two restrictions. I would prefer no need to register, and being able to spend on TV and radio.

The ability to gain access to TV and radio advertising might make the option of proportionate regulation of parallel campaigners more attractive for some.

Monitoring and Compliance

Electoral Agencies to be merged as detail in previous post. Best of all the new agency will be able to advise parties and candidates as to what constitutes an election advertisment.

No changes to penalties or time limits, and I presume (sadly) the Police will retain the prosecution function.

Overall it is a good document. There are definitely some things I do not agree with, but they have generally made quite sensible decisions, and the options outlined are workable models. Of course of high interest will be which option they choose!

Two significant announcements from Simon Power. The first is that the three electoral agencies are being merged into one agency, which will be fully independent of the Government.

I’ve long advocated that, and it is great to see a Government finally doing it.

The Electoral Commission and the Chief Electoral Officer will merge by 1 October 2010 and the Chief Registrar of Electors will merge in after the 2011 election.

I presume the Commissioners will be appointed by Parliament. At present they are a mixture of appointment by the Minister and ex-officio the Secretary of Justice.

Simon Power has also released a proposal document, after the earlier discussion document, on electoral finance reform.

I’ll blog in more detail on the proposal document later, but I’m really pleased to see that in relatively contentious areas such as length of regulated period, broad casting allocations, they have proposed two or three options so that one can have a more useful debate (as in between options) as oppossed to clean slate discussion in the discussion document.

Really the process has been near flawless so far, and very inclusive. Total opposite to what the last Government did.

Submissions will be open until 30 October 2009.

Words I never thought I would say. But Jim’s Bill is a good one:

Jim Anderton has drafted a Bill designed to stop current members of parliament from standing for election to parliament in a by-election. …

“It’s a nonsense that people can stand for election to parliament when they’ve already members of parliament,” says Member of Parliament for Wigram and Progressive leader, Jim Anderton

“What would rate-payers think if a member of a city council stood in a by-election to become a city councillor?”

“There should be a rule that if you want to stand in a by-election, you first resign your seat in parliament.

I support this bill. Certainly to select committee at least, but also all the way (if it is drawn out) unless there is a very persuasive argument against it.

One can argue that there should be no restrictions on the rights of electors to vote for whom they like. But I believe term limits (for example) on the US Presidency enhance democracy, not detract from it.

There are two objections to List MPs standing in a by-election. The first is the huge advantage they get with taxpayer resources.

The second is that the result of that by-election is that an additional MP enters on that party’s list, who was not the person who attended meet the candidate meetings etc. You vote Twyford, and get Tizard etc. And unless you have bloggers there to point this out to voters, they may not realise this!

A third minor point is you could get a minor constitutional crisis if a List MP is elected as an Electorate MP in a by-election and they do not resign their list seat before they the writ gets returned for the by-election. They would then have to continue on as  both and electorate and a list MP, and while I doubt they would be allowed two votes, it would be messy. Would they get funding for both their roles etc?

Now my support of Anderton’s bill is no criticism of List MPs who have stood as candidates in by-elections. Doing so was within the rules. But the rules should be changed.

Labour have put online their 41 page submission on electoral finance laws. I have three general points to make on it, and then will go into lots of detail.

1. They have backed away significantly from their position on the provisions of the Electoral Finance Act, and are not supporting limits on third party expenditure etc or having the regulated period last all year.
2. Most of what they argue for is reasonably self serving – it is what is good for Labour. In my submission I have argued for many things which I doubt National would find desirable (such as banning anonymous donations over $100 and requiring parties to published audited accounts). So Labour’s submission should be regarded very much as an affected party. That does not mean their arguments have no value.
3. They make many assertions without evidence or proof. An example if their call for state funding when the evidence of 2008 is that it is not needed as both National and Labour raised enough money privately to spend to the limit.

Now into details.

Election rules should not advantage one party over another, nor should they place inequitable barriers to the formation and entry of new parties into Parliament.

Labour claim this, but the actual details of their submission do not match this. Current parliamentary parties have a huge advantage over those not in Parliament yet Labour proposes they be given even more additional state resources and further that parties not in Parliament be banned from purchasing broadcasting time.

Voter registration is one barrier to participation. From 2002 voters have been able to register up till the day before an election, and this has been an important step in improving participation. However, given that voter registration is compulsory, it should also be available on election day itself provided the normal statutory criteria for residence are met.

Good God. Never before have I heard voter registration be called a barrier to participation. That is like calling school enrolment a barrier to eduction.

Recent New Zealand political history has seen a number of occasions where significant sums provided to political parties across the spectrum have raised questions about their purpose in relation to the purchase of influence.

Yes the most recent was the revelation by the Serious Fraud Office that certain racing interests had personally paids debts on behalf of the Racing Minister in Helen Clark’s Government. Labour slammed the SFO for revealing this, and Helen Clark said she would not read the SFO evidence as she had better things to do.

This gives you some idea of how genuinely concerned Labour is by corporate influence in politics.

To better ensure transparency, the threshold for declaration of donations should be reduced to $1000 for both constituency candidates and for political parties.

The argument outlined in the Issues Paper that lower thresholds would be an unjustifiable imposition on freedom of speech is weak and contrary to the principle of transparency. It confuses the right to say what you think with the right to buy policy outcomes without disclosing your interest.

This is an example of Labour failing to back up their assertions with a shred of evidence. What evidence do they have that the current $10,000 limit allows people to buy policy outcomes? Are they speaking from experience?

They need to justify why the disclosure level should be lowered from $10,000 to $1,000.  In other words why should someone not be able to privately donate $1,500? Do they seriously assert you can buy policies or MPs for say $1,500?

$1,000 represents around 0.05% of a major party’s total election year expenditure. Are Labour really saying funding 0.05% of annual expenditure gets influence?

I’m not saying that $10,000 is the perfect limit – but I want a rational reason why why donors who give less than that should sacrifice their privacy?

The current provisions on protected anonymous donations should remain.

This is very self serving of Labour. Having railed against big undisclosed donations, they now say they want to continue the regime where a major donor can give $36,000 to them anonymously through the Electoral Commission. I advocate there should be no anonymous donations (above a minor level such as $100) as it is near impossible to prove or disprove that the party doesn’t actually get to know who donated the money. The protected anonymous donations regime should bs scrapped.

So everyone should remember this – Labour’s official position is to allow for $240,000 of anonymous donations per political party. They are for anonymous donations – not against them.

Overseas donations should be banned completely (except for New Zealand citizens, residents or voters for the time being overseas).

I have no problems with donations from any legal source, so long as they are disclosed if significant. It is ironic that we will accept $127 million donation of art work from Julian Robertson, but claim it is corruption if he donates $1,100 to a party. People can care about New Zealand without being citizens.

But having said that, I’m not greatly fussed either way. However if one is to ban overseas donations – ban all of them – can anyone not on the electoral roll(and over 18) from donating.

There should there be a limit on donations from a single source of $100,000 over a three year period. This limit should be inflation adjusted every three years.

This is from the party that took $500,000 from Owen Glenn. Think that would be their position if he still liked them?

Again Labour fail to make a case for their preference. What is the harm done by someone openly donating $120,000 (say $40,000 a year) to their preferred party. Transparency is crucial, and these should be publicly disclosed so the public can decide on whether or not they have a problem with said donations. Trust the public I say.

If Greenpeace International wanted to donate $150,000 to the Green Party, I would say let them. We should all know about it – so we can decide what we think that means in terms of desirability of supporting the Greens.

Political parties should be required to provide annual audited accounts with itemised categories of donations income so that actual income can be compared with declared donations.

Now this one I agree on, and in fact am very pleased to see Labour advocating it. After the NZ First funding revelations I concluded some sort of audited accounts with donations grouped by size is desirable. I only want the names of those who donate more than $10,000 (as that is level influence may be a factor) but it would be useful to see how many donations between say $1,000 and $10,000 are received. This allows the public to decide if (for example) NZ First’s claims of being all funded by cake stalls was the reality or not.

In election year, donations received by a party after its last annual return to the Electoral Commission should be publicly declared through the Commission on a regular basis after they are received, and up to and during the regulated election period.

This is one issue I forgot to cover in my submission. I actually think donations should be declared monthly during the whole three yearly cycle, and weekly or daily during the last month – we should know about donations when they are made, and always in advance of an election.

So I agree with Labour here, but think they do not go far enough.

The Labour Party believes that the corollary of tightened controls on private funding of political parties – with the greater disclosure and compliance requirements involved – is some provision of public funds for political parties.

Again Labour have failed to prove there is a problem. The Electoral Finance Act brought in much tighter controls on donations, yet both Labour and National spent to the limit. Both were able to raise all the money they needed privately.

Labour want state funding on the basis, there *may* be a problem in the future with inadequate private funding. Not good enough. The 2008 election has shown that there was no shortage of private funding, and Labour’s attempt to gain (even greater) state funding is sheer opportunism.

Both the registered party and parliamentary party contribute to the formation of policy on which the voters base their choice. The accountability provisions in the Electoral Act also devolve to the registered extra-parliamentary party.

Public funding would contribute to the independence of the extra-parliamentary party by providing a balance and the avoidance of parliamentary capture.

This is hogwash. The opposite is the case. One of the few accountabilities that the main party has over the parliamentary party is that they raise the money. This is why parliamentary parties suffer consequences if they ignore their membership.

You bring in state funding, and it allows the parliamentary party to marginalise even further the organisational party.

In our view, a base level of public funding should be available to parties who meet the statutory criteria of 500 members and contesting seats in Parliament. Currently the only available form of public funding for such parties is provided through the Broadcasting Act 1989, which on its own is clearly insufficient.

Parties outside Parliament are massively disadvantaged. But giving Labour $800,000 a year and the Alliance $2,000 a year is not going to change that – in fact it will make it far worse.

My proposal to help parties outside Parliament, is that the broadcasting allocation be restricted to non parliamentary parties only. The parties in Parliament get three years of broadcasting exposure through the media for free.

Broadcast advertising is the primary means that wealth-based electoral systems use to influence opinion.

What decade are they in? How many people even watch TV ads now? Heard of My Sky. Broadcast advertising is no longer as dominant as it once was.

The limitation of broadcast advertising to allocated public funds is an excellent feature of New Zealand’s political system and should be retained.

Far from being excellent, it is a travesty. If a party registers late in the piece they are banned from broadcast advertising. The current rules not only give National and Labour more money for broadcast advertising – but they ban the other parties from being able to spend as much as them with their own money. This is not a level playing field – it is one that favours the two main parties massively.

It may be preferable for the cost of the time allocation to be added to the broadcasting allocation and the time allocation discontinued and replaced with funding that can be used to buy time as best suits the parties. This would allow for freer use by political parties of the resource for broadcast advertising.

Here I agree. But again the hypocrisy – they are saying a party should not be allowed to (for example) spent $50,000 less on billboards and $50,000 more on radio advertising but they are saying parties should have freer use of broadcast advertising. Inconsistent.

Political parties should not be able to purchase broadcasting time with their own resources. This will only serve to advantage parties with access to money.

Nonsense so long as you still have an overall spending limit. The current law gives National and Labour a bigger spending limit that all the other parties as they can’t purchase broadcasting time beyond the allocation. This is about protecting Labour’s statutory advantage.

It must be made clear in the Electoral Act that no spending authorised for parliamentary purposes by Parliamentary Service rules can be counted as election expenses under the Electoral Act.

And this is what they tried to do with the Electoral Finance Act. They want to have the pledge card not count as an election expense. They want to be able to spend say $1.5 million in the final week of the election on “parliamentary publications” and not have it count as an election expense.

I go the opposite direction. During the regulated period, there should be a ban on parliamentary funding of advertising except essential advertising such as office hours.

You see what I mean about how self serving Labour’s submission is. They want to keep their anonymous donations. They want more state funding. They want to stop competitors from buying broadcasting time and they want to be able to spend thir parliamentary budget as late as they like durign an election campaign and not have it count as an expense.

The current limits for constituency candidates ($20,000) and political parties (a maximum of $2.4 million, if all electorates are contested) should be retained but be inflation adjusted (from the 2008 limits as a base) before the 2011 election.

Again Labour make assertions with no emperical basis to them. Mr argument is that the spending limits should be set high enough to allow an affective communication with the public, yet below the level at which you may be seen as “drowning out” others.

$20,000 is totally inadequate for being able to communicate with 45,000 voters. It doesn’t even allow one direct mail letter.

The 1996 limits should at a minimum be adjusted for inflation and population growth. Ideally though, as I submitted, there should eb an attempt to actually calculate what is a reasonable or desirable amount of communication from candidates and parties, cost it and then set the limit high enough to allow that. Don’t guess at what the limit should be – calculate it.

The extension of the regulated period in the Electoral Finance Act to the beginning of the calendar year in which an election takes place added greatly to compliance requirements.

And whose idea was that? Credit I suppose for admitting it was a disaster.

Considering the pattern of the last 25 years, a reasonable fixed date for the start of the regulated period would be 1 May of election year.

I am not against a fixed start date but 1 May is far too early. You have not even had the budget by then. I like the proposal of 90 days before the term of Parliament expires – which will be a known date. If a fixed date I would never go earlier than 1 July.

Provision would need to be made for where a particularly early election was called. We suggest that in the case of an election date being announced earlier than 30 April, the regulated period begin the day after the announcement.

Yes, The regulated period should never be retrospective.

The atomistic redefinition in the Electoral Finance Act (section 5) of “any form of words or graphics, or both” proved problematic.

And we warned against it.

The true name and address of those who promote election advertising should be disclosed.

Yes, but this need not be on the advertisement. The Electoral Commission could have on its website contact details for political parties, candidates, and registered third parties.

Where the third party campaign is issue based and does not seek to promote a vote for or against a particular party or candidate, we do not propose any spending cap but do propose transparency above, say, $100,000 of spending.

This is a better position than the EFA. Transparency is key I agree.

However they seemed to have not covered what rules should apply to advertisements against a party or candidate? Are they sayign these should be banned?

I think everyone accepts you can’t advertise urging a vote for National without National’s permission. But what say you wish to advocate people do not vote for ACT? Are Labour saying this should be banned?

Consequently, parallel campaigners should be regulated if they propose to spend over a specified threshold, say $100,000. They should be required to register with the Electoral Commission, and a list of all such parallel campaigners should be made public, as should their donors.

As I said this is an improvement on the EFA.

The financial agent provisions from Electoral Finance Act should be
reinstated – accountability is only possible if responsibility is clearly
defined.

I tend to agree. But I also worry that parties often get off the hook by claiming x did this without y knowing, so hence no prosecution. This helped get Labour off the pledge card. I propose that parties themselves can also be held liable for breaches. So if they have crummy systems which leads too a breach, they get pinged.

Consideration should be given to reforming and amalgamating the electoral oversight agencies, and giving the oversight agency power to obtain further information about parties’ accounts. This is especially the case if additional state funding is made available to registered parties.

Amalgamation is well overdue.

The role of the Police should be retained for prosecution referrals.

No no no no no do. They don’t want the job. They don’t dedicate sufficient resource to it. They don’t have the expertise and in 2005 especially they made some appalling decisions.

Wow this is a long post. I am looking forward to the pubishing of the other submissions, or a summary of them.

I was hoping to blog this over the last week but got too busy so have had to write it all in the last 36 hours.

Anyway for those interested my submission is here – electoral-finance-reform-submission-form-final-dpf.

The very high level summary of what I advoctaed is:

1. Agree with six principles but under equity makes it “manifestly unfair” rather than merely unfair. Also add 7th principle of simplicity.
2. Ban all anonymous donations (except those under $100 as not practical to record every cent), and abolish protected donations regime through Electoral Commission.
3. Retain transparency and disclosure of donations through an intermediary such as a trust.
4. Proposed disclosure threshold for donations remain at $10,000/year but also require disclosure if donations exceed $25,000 over a three year electoral cycle.
5. No limit on donations from a single source.
6. Donation levels should be inflation adjusted.
7. No restriction on who can donate, so long as significant donations are disclosed.
8. Against any additional public funding of parties or their campaigns
9. Would ban all advertising from parliamentary or Government funds during the regulated period, except essential advertising approved by Auditor-General.
10. Restrict the current broadcasting allocation to parties not in Parliament as parties in Parliament already have a massive advantage with their media profile, their MPs, their parliamentary staff and their parliamentary budgets. Suggest $200,000 per non parliamentary party be allowed.
11. Political parties (and third parties) should be allowed to purchase their own broadcasting time and advertisements.
12. TVNZ and RNZ should not be required to give away free broadcast time for party broadcasts.
13. Advocate new additional transparency requirements for political parties – that they report a summary of all donations received by band – ie x donations from $0 to $100, y donations from $101 to $1,000, z donations from $1,001 to $10,000  etc. This will allow an overall picture of how a party is funded and would have exposed the false imagine NZ First portrayed as solely funded by cake stalls etc.
14. Campaign spending limits should be based on emperical evidance of what amount of money is needed to effectively communicate with all voters. Suggest $50,000 for electorate campaigns and $5 million for party campaigns. Note this includes the broadcasting allocation so effectively moves the limit from $3.5 million to $5.0 million – which is what it would be anyway if it had been inflation and population adjusted from 1996 when last set.
15. Spending levels should be inflation and population adjusted.
16. Would like a fixed election date and regulated period to start 90 days before that. If not possible, then have regulated period start 90 days befroe expiry of the House or on a fixed date such as 1 September. Must not have a retrospective regulated period.
17. Have a narrow definition of election advertisement so it does not capture personal communication of views etc.
18. Generally exempt communications on the Internet as this is information people seek out. Exception is paid advertising on the Internet.
19. Require advertisements to be authorised but allow names and addresses to be listed on Electoral Commission website.
20. Have a voluntary registration regime and spending limit for third parties or parallel campaigners. Provide incentives for third parties to register – such as binding rulings on advertisements, but not make it compulsory as experience of EFA is this is hugely resented.
21. Suggest threshold for registration (if compulsory) is $50,000
22. Spending limit (preferably voluntary) to be 20% of a party’s limit or $1 million.
23. Combine electoral agencies and let them take cases direct to Court without Police.
24. Allow electoral agency to give binding rulings like the IRD
25. Also allow agency to impose automatic fines for minor breaches such as late returns.

The Ministry of Justice will pubish a summary of submissions in the near future and in August a proposals paper. Will be very interested to see them.

The Police have responded to my OIA request for the outcomes of the electoral complaints and referrals. I have uploaded the spreadsheet – ero-case-outcomes-as-at-28-may-2009.

There are a number of categories, I have grouped them by:

Proceeding

This mean the case has not been closed, or at least not notified to the affected parties.

1. 9 candidates not filed expense retruns on time (7 now have)
2. Labour for several advertisements being distributed on polling day in Blenheim and Taranaki
3. Rodney Hide’s yellow jacket
4. Nicholas Keesing for distributing election material on polling day
5. NewstalkZB for prohibited election programmes with Winston Peters and Shane Jones
6. Shane Jones for an election advertisement without a promoter statement

The Police have said they will update me when these are resolved. Nos 3 and 4 will be very interesting. 5 could also be a precedent about MPs on talkback during the regulated period.

Prosecuted

1. Family Party for late filing (twice) of donation returns when donation exceeded $20,000
2. Two cases of double voting
3. NZ First banners in Tauranga with no promoter statement

No 3 I am of course very interested in. Also to some degree with No 1.

Warning Given

1. National Ohariu Candidate for display of ribbons on election day
2. Toroa Radio for a prohibited election programme for the Alliance
3. 41 cases of double voting
4. Te Runanga O Kirikiriroa Trust for an advertisement supporting a party not approved by that party
5. Nicky Wagner for an advertisement not authorised and no promoter statement
6. ACT for a Hunua flyer not authorised and no promoter statement
7. Cobb & Co Paraparaumu for an election advertisement supporting a party not approved by that party
8. Dog registered to vote
9. Labour boolet at Waikato University with no promoter statement

These all look reasonable sensible to deal with by warning.

No offence

1. Six cases of apparent double voting
2. Jim Anderton’s e-newsletter, as it had a promoter statement on website where people subscribed to it
3. NZ First donation return for 2007 as Party Secretary took reasonable steps
4. Social Credit for late 2007 donation return as they had a reasonable excuse
5. EMA Northern for exceeding spending limit of third party ads – not an offence as Police found it was an issue ad, not an election ad
6. A phone survey which may have been an election advert – isolated and no promoter known
7. Jim Anderton ad in Southern Express as Police accept advert published in his Ministerial role
8. Voter enrolled in two electorates – turned out to be two people with same name

No 2, No 5 and No 7 are interesting as in this case the Police have reached a different conclusion to the Electoral Commission. And of course a Judge (if it ever went to court) could have reached a different conclusion also. Now the EFA is toast, we’ll never know where the fine line between an issue ad and a election ad is to be drawn.

Once again thanks to the Police for the OIA response. It is disappointing that not all cases are yet resolved, but as I understand it the officers on the electoral team has been seconded to other jobs at various times.  This is one reason I still prefer that the electoral agencies can directly refer to court, rather than go through a spcialist agency, and also the Police. The Police will always struggle to treat electoral offences as a priority against other crimes.

Simon Power has released the issues paper on the topic of electoral finance.  It’s 70 pages long, so good weekend reading.

I will blog next week in detail on it, and critique it. I encourage people who remember the horrors of the EFA to take an interest, get involved and participate.

At this stage mark down these dates for the public forums:

Wellington

Tues 9 June 1730 – 1900 Rutherford House

Auckland

Mon 8 June 1730 – 1900 Copthorne Hotel, Auckland Harbour

Christchurch

Thu 4 June 1730 – 1900 Christchurch Convention Centre

Submissions on the paper close Friday 26 June.

Have your say, or you risk losing your say (again).

I’m delighted with the process outlined by Simon Power to consider electoral finance issues.

Readers will recall that Labour, Greens and NZ First negotiated the Electoral Finance Bill in secret. There was no opportunity for any public input until it reached select committee. And we also all know how terribly flawed that bill was.

So what is National proposing as a process:

1. An issues paper released in May 2009
2. Public Forums in Auckland, Wellington and Christchurch
3. Submissions on Issues Paper
4. Govt releases summary of submissions
5. Govt then releases a proposed policy for reform in August 2009
6. Submissions on proposed policy
7. Govt releases summary of submissions
8. Then Govt introduces bill into Parliament in late 2009 or early 2010,  with normal select committee process

I’m really pleased that they are doing two, not one, stages of public consultation – on both the issues paper and on the proposed policy – that way it is all no surprises.

Also very pleased to see public forums are scheduled. I had been talking to some NGOs about organising some forums to fit in with the consultation. It is even better that the Government itself will organise such forums. I encourage people to take advantage of the opportunity to have a say.

The following topics are being considered:

• Guiding Principles
• Candidate and Party Funding
• Campaign Spending
• Advertising
• Parallel Campaigning
• Monitoring & Compliance

Off-topic for the review is:

• The MMP electoral system
• Maori representation
• Structure of electoral agencies
• Electoral roll administration
• Electorate boundaries
• Local Government electoral law

I agree these are best dealt with separetly. I do hoep the Government will look at some of these issues independently and consider changes – especially to the electoral agencies structure and electoral roll administration.

Last week Radio NZ reported: