Kiwiblog

The NZ Herald editorial:

Three years after the outcry at financial restrictions on independent electoral advertising, the Labour Party has got its way. National has folded on an issue it fought from Opposition, agreeing to restrictions that differ only by degree with the spending limits legislated by the Labour Government. …

National has surrendered to the left’s fear of money, which is just one possible influence among many in an election. Its bipartisan fix will leave our politics poorer and preserve elections largely for the parties who have conspired to produce this disgraceful discouraging law.

Again I encourage National Party members to speak up on this law. Bring the topic up at monthly electorate meetings with MPs. Ask your regional chairs and board members what their views on the law is, and will they do to represent the views of members on this issue. Consider moving a resolution at Regional Council meetings reaffirming National’s opposition to having the Government restrict the ability of “third parties” to spend their own money criticising parties, candidates and policies they don’t like.

I recognise that the law change has been agreed to, and will occur. You may wonder then what is the point of protesting – is it just to be destructive? No, the idea is to provide an incentive for this not to happen again in future, where the parliamentary wing agrees to something that National campaigned against so strongly. Unless MPs hear the voices of party members on this issue, then the party becomes marginalised.

Remember that the EFA had already been repealed (with Labour’s support) soon after the election. The bill that entered Parliament did not have restrictions on third party spending in it. National was not forced to agree to it, to get the law passed. It chose to do so.

I am looking forward to the second reading speeches on the Electoral Finance Bill bt National MPs. Whale has dug up some quotes from the last time there was a law passed to restrict the ability of citizens to advocate against the Government dueing an election campaign.

• Lindsay Tisch: This is a Government that purports to support human rights in Zimbabwe and Fiji, yet at the same time wants to limit Kiwis in having their say.
• Jo Goodhew: . I can assure her that we are responding to the many, many New Zealanders who have told us how much they dislike this bill and who have said they do not want their freedom of speech shut down.
• Allan Peachey: : I was particularly anxious, after days of trying, to get a call on the Committee stage of the Electoral Finance Bill, because I want it recorded for all time in the annals of this House that I am one of those members who spoke against and voted against this attack on the democratic tradition of this country—and that is what this bill is.
• John Key: We know that after this legislation New Zealanders will no longer be free. They are used to operating in a democracy in New Zealand where they are free to express themselves on political issues, they are free to criticise the Government, they are free to criticise the Opposition, they are free to promote policies they like and to protest against policies they do not like,
• John Carter: This is an absolute restriction on the freedom of speech in this country, and if people ever thought that one day we would have to be here defending the democratic right of people in this country to express their views

As I said, I am looking forward to hearing the speeches about how a $120,000 limit was an attack on free speech but a $300,000 limit (admittedly over a smaller time period) is fine.

While I am mightily pissed over the restrictions on third parties, the select committee has made many other changes, which are reasonably desirable. I’ll summarise them below.

• The editorial content of any periodical, radio or television programme, or news media Internet site is now excluded from being an election advertisement, rather than the former requirement that it be “solely for the purposes of informing, enlightening, or entertaining” which I and other submitted was too narrow.
• The exclusion for those expressing personal political views on the Internet was defined as only applying if “non-commercial”, and now it applies unless “the person makes or receives payment to express that view for publication”. That is a very welcome change.
• The definition of the regulated period has changed from what was in the draft bill, to the definition I proposed at a seminar of “experts”. The regulated period will now start 2 years and nine months after the last general election unless the PM calls an early election. This is great as it means no longer will there be a retrospective regulated period, and it also provides certainty as to when it will begin (if no snap election).
• A $300,000 (incl GST) expenditure cap on third party spending during the regulated period. This will inflation adjust. While the limit is relatively high, it is less than 10% of what a party spends in total and National should not have voted for it.
• Candidate expenditure limits have increased from $20,300 to $25,000. A small step in the right direction but the reality is that this is still an inadequate amount to be able to effectively communicate to 40,000 people over three months.
• The party expenditure limit also increased from $1.015m and $20,300 per electorate ($2.436m in total) to $1.032m and $25,000 per electorate ($2.782m in total). Again a good move in the right direction but it doesn’t even cover the inflation impact since 1993. It will at least be inflation adjusted in future.
• The summary disclosure of total revenue from donations changes from bans of under $1k, $1k to $10k and over $10k to $1.5K to $5k, $5l to $15k and over $15k. I think it is regrettable that the total amount of small donations will not be disclosed as this would have allowed the public to form a holistic view of the total way a party is funded.
• The disclosure limit of identity for individual donations has increased from $10k to $15k. Presumably this is part of the trade off with Labour in return for support third party restrictions. However I think the $10k limit was about right, and don’t see a need for it to increase to $15k. Transparency is my preference over limits.
• The disclosure limit for candidates increases from $1,000 to $1,500. Not a big change there.

Both Greens and ACT have done minority reports.

I will be very interested to see what Labour says about this bill. It is a win for them.

Most of the changes made by the select committee are good ones. The compromise over third party spending limits is what spoils it. I would be very interested to know where the decision was made to do that compromise – was it at Cabinet or at Caucus?

God I am pissed off. The Electoral (Finance and Advance Voting) Amendment Bill has been reported back, and National and Labour have voted for introducing a cap on third party spending.

I really wonder sometimes why we bother changing Governments, when the  new Government adopts so many politics of the old Government – especially a policy that was a big part of why they got thrown out.

The law is not as bad as the old EFA, for four reasons, but is still an unjustified limitation on the rights of New Zealanders to campaign against Governments or parties they don’t like. The four mitigating factors are:

1. The limit is $300,000 over three months rather than $120,000 over 11 months. That is around 10 times as high per month.
2. The bill does follow a public and transparent public policy process where people were allowed to have their say, and where most backed a limit
3. The bill has bipartisan support, and is not an attempt by one party to do over their opponents
4. There have been some trade-offs with Labour agreeing to back higher spending limits for candidates

But don’t read that list of mitigating factors as signalling agreement with the bill. I think National has sold out far too cheaply. I did say in my submission that I supported bipartisan agreement, and if National concedes on something , then basically Labour should do the same. But the only concession that in my opinion would be suitable for having a limit on third party spending would be removing the draconian ban of political parties being able to but advertising time on television and radio. If National could have got Labour to agree to that change, then I would grudgingly accept a compromise on third party spending.

I think many of those who protested against the EFA will feel a sense of betrayal with this bill. National has put the desire to be bipartisan with electoral law (which is commendable) ahead of doing what is right.

I did support the bill at select committee stage on the basis it did improve things in several areas. And the select committee has also made many other minor improvements which I support (and will detail in a later post). But the inclusion of a limit on third party spending, combined with no lifting of the ban on parties buying their own broadcasting time, means that I no longer think the bill is worth proceeding with.

I accept that in reality few third parties will find the $300,000 limit a barrier. The trade unions tend to be the biggest spenders and their biggest contribution is staff hours (which do not count as spending). And the limit is simple to get around also. But by agreeing to such a limit, National has now made it easier for future Governments to lower it, to try and silence their opponents.

Labour should be very very happy with the willingness of the Government to not just give them a veto over changes to the existing law, but also to introduce measures the National Party submitted against, all for the sake of bipartisan electoral law. It is a universe different from what Labour did in its last term, and my fear is that a future Labour Government will not return the benevolence and when they are next in Government, make changes without bipartisan support.

National MPs who railed against the Electoral Finance Act should feel very sheepish when they vote for this bill to become law. I suggest National Party members take advantage of end of year meetings to ask their MPs why they agreed to support limits on third parties using their own money to have a say during election campaigns.

UPDATE: Whale provides us with this updated billboard:

It would look better if it was 6 metres by 4 metres in size I think.

The Police announce:

A number of search warrants have been executed on residential and business addresses in Auckland’s Papatoetoe ward over the last two days as part of the police inquiry into electoral roll enrolment irregularities.

Detective Inspector Mark Gutry, crime manager, Counties Manukau Police, said the search warrants were executed at “properties of interest” to the inquiry which follows a complaint from the Electoral Enrolment Centre.

Up to 40 officers are involved in this latest phase of the inquiry.  People at the addresses or associated with them have been very helpful.   Candidates and campaign staff will also be contacted for information as part of the inquiry.

The Registrar of Electors last week removed 306 enrolments after establishing that people did not live at addresses stated on enrolment forms.

“Police are very aware of the electorate interest in this inquiry and we are working to complete it as thoroughly and quickly as possible,” Detective Inspector Gutry said.

“It’s too early to say what the outcome of our investigation will be.  Elections and the right to vote are part of New Zealand’s democratic process.  If people do have concerns about irregularities in the Papatoetoe ward then it’s important they have the confidence to speak up and get in touch with us.”

Well done NZ Police. 40 officers is a very serious commitment. Hopefully they will get a result quickly, as this could affect the election. If a candidate (or party) is found to be involved, then people should know this before they vote.

Andrew Geddis blogs at Pundit:

Parliament’s Law and Order committee has, by a majority consisting of National and Act members, recommended the enactment of Paul Quinn’s Electoral (Disqualification of Convicted Prisoners) Amendment Bill – although they would change its name to the Electoral (Disqualification of Sentenced Prisoners) Amendment Bill.

My first response to this news was wry amusement that despite me being the only submitter in favour (along with Paul Quinn the author), that the select committee went along. Of course that is not due to any powers of advocacy on my behalf, but because it is a National MPs bill.

This proposal is downright wrong in its intent, outright stupid in its design and (if finally enacted) would be such an indelible stain on the parliamentary lawmaking process as to call into question that institution’s legitimacy to act as supreme lawmaker for our society.

Now Andrew is a polite sort of chap. So when he starts bolding his comments, you take notice. It’s a sort of halfway house to shouting in CAPS.

The majority of the Law and Order select committee obviously agrees with him. Why? I have no idea, because the majority says nothing at all about why the basic principle behind Mr Quinn’s proposal is the right one to adopt.

Let me reiterate that. National and Act members of the Committee want to strip literally thousands of people of one of the most basic rights New Zealanders’ – every adult New Zealander – possess, and they say nothing at all about the reasons for doing so.

Now Andrew has a very fair point here. The majority should indeed state their reasons. That struck me also when I read their report.

I suspect the reason why the Committee majority have nothing to say is that there really isn’t any sort of reasoned answer to the case against Mr Quinn’s proposal. The most that those who support it can come up with is that it is somehow “less arbitrary” to disqualify all prisoners than just those sentenced to more than 3 years in jail, it will make life easier for electoral and prison officials, and that prisoners are bad people who just shouldn’t get the same say as you and me.

The link is to my submission. I don’t intend to get into a big debate on the merits of the bill, because it is fair to say my support is luke warm. I don’t see the bill as a priority, and would not normally advocate it as an area in need of change. However as the bill was put forward, I did conclude that the current law of a three year threshold is extremely arbitrary, and that the more principled positions are to either have no prisoners have the right to vote – or have all prisoners with the right to vote. My preference being the former.

Obviously, I think this is a flawed argument – one that flows out of knee-jerk “get tough on crime” rhetoric rather than any sort of reasoned view of penal policy or proper democratic process. But lets say you are the kind of person who takes it seriously. Clearly, three people who you believe shouldn’t get to have a vote are William Bell, Graeme Burton and Clayton Weatherston.

Well, guess what? If the Law and Order committee’s recommendations to the House get passed into law, these three guys – as well as any other murderer, rapist or violent criminal currently serving a sentence of more than 3 years – will get to vote at the next election.

That’s because the committee suggests completely repealing the current disqualification provision in the Electoral Act 1993, s.81(d) and replacing it with this provision:

“a person who is detained in a prison pursuant to a sentence of imprisonment imposed after the commencement of the Electoral (Disqualification of Sentenced 15 Prisoners) Amendment Act 2010:”

See the problem? It removes the legislative provision that disqualifies people presently serving lengthy prison sentences and instead only disqualifies people sentenced to prison after the bill is enacted into law. So, there would be nothing in law to stop anyone imprisoned at the time the bill is enacted from applying to be registered to vote, and consequently casting a vote at the 2011 election.

This is a major screw up. Andrew correctly points out it would in fact restore the vote to every person currently doing a term of more than three years.

The Government should be thankful that Andrew is not a partisan who would be tempted to keep quiet on this flaw until after the bill is passed – when it would be far far more embarrassing to fix.

That’s why I called the majority members of the Law and Order committee “dumb”. They obviously don’t understand what the effect of their recommended amendments would be. How could they have got it so wrong?

Well, the answer lies in yet another abuse of parliamentary process. You might think that a proposed piece of legislation that will amend New Zealand’s electoral laws naturally would get considered by Parliament’s all-party Electoral Legislation Committee, rather than its Law and Order committee. And you’d think that whatever committee considers the matter would receive support from the Ministry of Justice, which has oversight of New Zealand’s electoral laws, rather than the Department of Corrections, which deals with keeping prisoners in jail.

I don’t think calling MPs dumb is particularly helpful, as I think it is more a job for officials to word the bill so it doesn’t have unintended consequences. But where Andrew is on strong ground is pointing out that the Government chose not only not to send it to the specialist electoral committee, it also chose not to have the Ministry of Justice advise on it – Corrections was used instead.

This should serve as a warning for why seeking to avoid using a Ministry just because you may not like their advice is a bad thing.

The Government, and Parliament, owe Andrew a debt of gratitude for pointing out the drafting error which would basically achieve the opposite of what the bill seeks to do.

The four speakers are Simon Power, Charles Chauvel, Caroline Morris and Philip Joseph. I missed some of the written constitution session as I had to go out and buy a new power cord for my laptop.

Power is speaking first. Basically just going over work to date – MMP referendum, new Electoral Commission, EFA repeal. Highlighting that the crucial thing with its replacement has been a transparent inclusive process.

Power has effectively said that any further changes to the finance law will require identification of some clear harm to be fixed, that is agreed across the political spectrum. This means that not everyone will be happy, but that there will be nothing that any group finds offensive.

Next up was Chauvel. Mainly focusing on why MMP is good.

Joseph argued that the Maori seats should not be entrenched and in favour of a longer and fixed parliamentary term. I agree with him on all points. He only favors a fixed term if it is longer.

However Joseph is pessimistic on the chances of reform.

Finally Morris is up. Focusing on conduct of MPs. Says discipline of MPs should not be left to party leaders.

SUBMISSION OF DAVID FARRAR
TO THE ELECTORAL LEGISLATION SELECT COMMITTEE
ON THE PARLIAMENTARY SERVICE AMENDMENT BILL 2010

About the Submitter

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

Executive Summary

1. I support the Parliamentary Service Amendment Bill 2010 as it provides a necessary limitation on what advertisements can be funded by the taxpayer during an election campaign.
2. The history of this issue goes back to the 2005 election, when the Auditor-General found much of the parliamentary spending was illegal and outside the law.
3. Parliament’s response was to legislate an interim definition of what was allowable that was wide – anything that did not explicitly call for votes, money or members was okay.
4. The problem with the interim definition is that it would have allowed a repeat of 2005, when you could have taxpayer funded election pledge cards being paid for by Parliament, just weeks or days before an election.
5. One solution is to adopt a more narrow definition during the entire parliamentary term – banning any publications that promote a political party or MP. The problem with this solution is that in practice it could never work. Almost all parliamentary publications involve a degree of party and MP promotion. One can not easily draw a fine line between parliamentary and political publications. The Opposition should be able to campaign against (for example) the Government’s budget, from their parliamentary budget. Otherwise the Government will be too powerful.
6. The solution adopted in this bill, is to have a wide definition of what is allowable for two years and nine months (approx), and to have a much tighter definition during the three month regulated period.
7. I support this solution, and in fact have publicly urged such a solution since 2006. It doesn’t unduly restrict the operations of Parliament during most of the parliamentary term, but makes the election period fairer by preventing parliamentary parties and incumbent MPs from being able to spend taxpayer money on their advertising materials.
8. The ability to get an advisory opinion from the Electoral Commission as to whether a proposed publication is an election advertisement will, I am sure, be welcomed by MPs and staff of the Parliamentary Service.
9. One issue I would raise is whether s3A(2)((a)(i) and (ii) should also exclude communications that explicitly call on people not to elect a particular person or party vote for a particular party. This would seem desirable to me, as I don’t think (for example) taxpayer funded pamphlets should ever explicitly refer to how people should vote.

In summary I urge the Electoral Legislation Committee to recommend the Parliamentary Service Amendment Bill 2010 be passed.

David Farrar

The Press reports:

Anderton said it was “a fair call” on the dual roles of mayor and MP, but the self-confessed “workaholic” said he was more than capable of handling both jobs. “I was a Cabinet minister with seven portfolios and an MP  of course I can do both jobs.”

He said that if the Government called an early election next year, as he suspected, rules dictated a by-election could not be held six months out from a general election.

If he quit, that could leave Wigram constituents without representation for several months, he said.

For someone who has been an MP for 26 years, Jim Anderton doesn’t know much about the Electoral Act.

The rules do not dictate a by-election could not be held six months out from a general election. S131 of the Electoral Act merely allows a super-majority of 75% of the House to resolve not to have a by-election if it is within six months of the expiry of Parliament.

Anderton could pledge to resign if he is elected Mayor, and a new MP for Wigram could be in place before Christmas. Instead he is going to run up $500,000 of salaries and expenses.

Parker said the Progressive Party leader was paid $144,500, his party received $200,000, and staff and electorate office costs brought the total close to $500,000.

“Ironically, he has estimated the cost of a by-election as $600,000 to the taxpayer,” Parker said. “He seems to have split-vision on the value of democracy.”

Anderton said his party received no government funding, and all money went into running his electorate operations.

Again Anderton is being deceptive. His parliamentary party receives around$170,000 of taxpayer funding – and this is on top of his electorate operations.

I’m scheduled to do my oral submission to the Law & Order Committee Wednesday morning at 11.20, on Paul Quinn’s bill to remove voting rights from all prisoners, rather than just those serving sentences of three or more years.

Now a minor problem is I am in London, but they are kindly calling me at the apartment I am in. The only problem is it will be 12.20 am Thursday here. True dedication to be uo after midnight just to do an oral submission.

Of course I am the only submitter actually in favour of the bill, apart from the sponsor. So I feel an obligation to make an effort, so at least there will be a proper debate.

My written submission is here, for those interested.

SUBMISSION OF DAVID FARRAR
TO THE ELECTORAL LEGISLATION SELECT COMMITTEE
ON THE ELECTORAL (FINANCE REFORM AND ADVANCE VOTING) AMENDMENT BILL

About the Submitter

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

3. I support the Electoral (Finance Reform and Advance Voting) Amendment Bill as it is an improvement upon the status quo.
4. I am disappointed that the bill does not go further in reforming our electoral finance laws. Specifically I believe that the broadcasting allocation needs significant reform, and the electorate spending limits are unacceptably low.
5. However I accept the wisdom of the Government’s position that no major changes from the status quo will be included, without widespread parliamentary agreement. Effectively the Government has given a veto to the Labour Party over what changes were included in the bill.
6. I believe it is highly desirable that there be widespread consensus on electoral laws. They should not be something for an incumbent Government to unilaterally change, as the ultimate prize in a winner takes all regime. For this reason, I somewhat reluctantly accept that there will not be broadcasting reform unless the Labour Party agrees to it – even though National and ACT who both support it could reform it by themselves.
7. It is my hope that the consensual approach taken by the Government, and specifically the Minister of Justice, is adhered to by future Governments. Just as a National-led Government has given the Labour opposition a veto over major reform, the implicit assumption is that a future Labour-led Government will do the same, and we will never be treated to a process such as we saw with the Electoral Finance Act.
8. I obtained cabinet papers relating to this bill from the Ministry of Justice under the Official Information Act. One of the options in those papers was a significant reform package which did reform the broadcasting regime and increase spending limits, but also imposed spending caps on parallel campaigners and lowered the donation disclosure limit.
9. That package is one I believe to be slightly superior to the consensual package that this bill is based on. It would have delivered two extra reforms that broadly speaking those of the right tend to have wanted (higher spending cap, broadcasting reform) and two reforms that broadly the left wanted (lower donation disclosure threshold, parallel campaigner spending cap).
10. I would urge committee members to consider a more significant balanced reform package, if it has concessions from both “sides”. For example while I am strongly against parallel campaigning spending limits, I would be prepared to compromise on that if it meant that the broadcasting regime was reformed to allow parties to buy their own broadcasting.

    Regulated Period
    

11. The proposed S3(B) defines the regulated period as starting the day after the default day, which will be three months before the last possible day an election can be held. There are exceptions for when an election is called early.
12. I believe it was the intention of the Government to avoid the problem of retrospectivity in the current law (which is highly desirable), but the solution they have come up with has consequences that would in most cases dramatically shorten the regulated period. This is because the last possible date an election can be called tends to be six to seven weeks after the previous election.
13. For example the last practical date for the next election is 7 January 2012. This means the regulated period would only start on 8 October 2012, and if the election was at the traditional late November date of 26 November 2011, the regulated period would be 49 days –almost half the normal three months. There was no policy consensus on shortening the regulated period like this.
14. The best solution to the issue of the regulated period would be to have a fixed election date, being the last Saturday in November every third year. This would allow the start of the regulated period to be known well in advance. It would also remove the tactical advantage an incumbent PM has in setting the election date, and stop snap elections on dubious grounds such as in 2002 and 1984.
15. If a fixed election date is not adopted, then I recommend two principles be applied to setting the regulated period. They are:
    (1) The regulated period should never be retrospective
    (2) The regulated period should, where possible, be around three months
16. I can testify with first hand experience the grave difficulties one can have as a campaign manager, when you do not know the start date of the regulated period until you are halfway through it. It is very important it never be retrospective. Now that it seems likely that the regulated period will also apply to the definition of MPs parliamentary advertising, I am hopeful this principle will be accepted.
17. I believe the law should be based on what will be the normal experience – an election held three years after the last election, hence the start of the regulated period should be two years and nine months after the previous election.
18. If an election is held early, then the regulated period should start from the day after the PM announces and gazettes the election date.
19. If for some reason the PM announces the date of the election more than three months before the general election (which may happen to avoid a by-election), then it should start from three months out.
20. Sometimes an election is more than three years past the previous election. This allows elections to move back to their normal November date, after an early election. In these cases the regulated period will be a bit longer than three months.
21. I have attached a table as Appendix A, which shows how long the regulated period was, or would have been, for every election since 1981 under the existing law, the bill, and my proposal. The average number of days in the regulated period under the bill is 64 days. The status quo is 92 days and my proposal 108 days.
22. This proposal can be implemented by amending the proposed S3B(5) so that it reads “default day means the day that is two years and nine months after the last general election”, and deleting S3C.

    Meaning of election advertisement
    

23. I propose two amendments to the exclusions from election advertisements in s3A(2).
24. I propose that s3A(2)(b) have the word “solely” replaced by primarily” in relation to the purpose of a news item being for informing, enlightening or entertaining readers. A test of “solely” is too restrictive and could result in newspaper editorials being classified as election advertisements.
25. I also propose that s3A(2)(e) have the words “on a non-commercial basis” deleted. The intent of the section is to exempt people such as bloggers from being required to register as a promoter for merely stating their personal views. The test of “personal political views” is sufficient in my opinion to exclude someone being paid to promote someone else’s views. The additional requirement of non-commercial is not defined, and could catch a blogger such as myself who receives a modest amount of advertising income through their blog

    Candidate’s Election Expenses
    

26. The limit on candidate election expenses should be set high enough so that a candidate can effectively communicate to the voters in their electorate, and low enough to stop a candidate from being able to gain an unfair advantage through dominating the local media.
27. My experience in 2005 is that the limit of $20,300 is far too low to allow a candidate to do even basic communications with the voters. It is less than 50c per adult in the electorate. Excluding GST it will be only $17,650 or around 40c per adult – not even enough to send a single direct mail letter.
28. This is hugely disadvantageous to candidates standing against incumbent MPs, as the incumbent has the benefit of parliamentary profile and resources.
29. I would urge the committee to ask officials to obtain specialist advice on what would constitute a reasonable electorate campaign for three months. For example it could be two direct mail letters, two unaddressed pamphlets, six quarter page ads in community newspapers, 50 hoardings, and one billboard. The spending limit should be set based on empirical costings at a level to allow the agreed upon activities. That limit should then be inflation and population adjusted.
30. If the committee is not wanting to empirically cost what an electorate campaign should consist of, at a minimum I would ask that the limit be increased to take account of inflation since 1993. That would move the limit to $29,000.

    Party’s Election Expenses
    

31. I note the limit for political parties has also not increased significantly since the early 1990s, despite inflation of 27% and population growth of 14%.
32. I support the proposal to inflation adjust the limit going forward. I believe it would be prudent to also population adjust it. Campaign costs do increase with population.
33. I also believe that it would be beneficial to increase it to take account of the inflation and growth since 1994. This would suggest a limit for a party contesting all electorates of $3.5 million.

    Liability for political parties
    

34. I would ask the committee to consider allowing political parties to be held liable for breaches of the Act, not just individuals such as party secretaries.
35. The current law has, in my opinion, encouraged disregard for the law, by making sure those liable are kept in the dark about certain bank accounts and trust funds. We saw this reported in 2008 with regards to the NZ First Party where the poor old party secretary was in the gun for donations and transactions she knew nothing about.

    Donations
    

36. I am pleased to see the requirements for parties to disclose their total amount of donations, in bands, as this will give greater transparency. I was one of those who proposed this during the policy review.
37. It would be desirable to make clear in the proposed s6A that the “total amounts” to be disclosed in bands are the total amount of money donated, not the total amount of donations made.
38. The current law on donations was only put in place in 2008, and has yet to go through a full electoral cycle. I think it would be premature to make conclusions on its adequacy or inadequacy until we have the benefit of a full cycle to review. It would be useful to have a full review after the 2011 election.

    Parallel Campaigners
    

39. The requirement for those who spend over $12,000 on election advertisements to register with the Electoral Commission is a useful transparency measure. The Electoral Commission should ensure it has full contact details of an individual representing the promoter, including their full name, address and phone number.
40. I do not believe there needs to be a spending cap on promoters. Apart from the fact it would be trivial to get around, it may actually encourage higher spending campaigns as a cap can become a target – as it has for political parties.
41. The public, assisted by the media, have shown themselves very capable of deciding how much value to place on an expensive advertising campaign funded by particular individuals or groups.
42. Sometimes there may be sound public policy reasons for a promoter to spend a lot of money on election advertising. If for example a political party passed a law confiscating property off a group of citizens. They may have had the Government rob them of $100 million of assets. They should be entitled to spend say $200,000 to campaign against the party that did that.
43. Take another scenario. What if the Crown confiscated land or property rights off an Iwi, as they have done in the past. That Iwi might want to campaign against the party in Government which stole their land or property rights. Do we believe it would be a good thing to prevent an Iwi from campaigning against a party that legislated away its rights?

    General
    

44. I was one of the “overseas experts and interested parties” who met in Wellington on 14 May 2010 to consider improvements to the bill. A joint submission was filed on our behalf by Andrew Geddis. I endorse the recommendations made in that submission..
45. I think the process lading to this bill has been excellent, with both a discussion paper and a proposal paper, and then a bill. I would urge this to become the standard process for future electoral finance reform.
46. While not a major focus of mine, I do support the provisions allow advance voting without needing to justify why.

In summary I urge the Electoral Legislation Committee to recommend the Electoral (Finance Reform and Advance Voting) Amendment Bill be passed, with amendments as proposed.

David Farrar

SUBMISSION OF DAVID FARRAR
TO THE LAW AND ORDER SELECT COMMITTEE
ON THE ELECTORAL (DISQUALIFICATION OF CONVICTED PRISONERS) AMENDMENT BILL

About the Submitter

1. This submission is made by David Farrar in a personal capacity. I would like to appear before the Committee to speak to my submission.
2. I have a long standing interest in the Electoral Act and have written extensively on it.

   Executive Summary
   

3. I support the Electoral (Disqualification of Convicted Prisoners) Bill as it provides for a more logical threshold, in disqualifying convicted criminals from voting.

   Overseas exceptions to suffrage
   

4. Amongst the democratic countries, there is no clear policy or threshold at which those convicted of crimes lose or do not lose their right to vote.
5. Some counties have no disqualification at all. Even the worst serial killers and gang rapists are allowed to vote from prison, despite serving a life sentence.
6. Other countries (or states within countries) have laws which prohibit not only current prisoners from voting, but maintains a ban on voting, even after they have been released
7. Some countries, like Australia and currently New Zealand, have a ban which only applies for sentences of three years or more.
8. Countries which have a total ban on prisoners voting are the United Kingdom, Ireland (de facto), Luxembourg, Estonia, Romania, Russia, Hungary and the Czech Republic. Also 48 of the 50 states of the United States (covering 99.4% of the population) ban prisoners from voting.

   Where should the line be drawn?
   

9. I do not believe there is any clearly right answer to where the threshold should be. Arguments can be made for any number of scenarios, which range along a continuum.
10. Below I have listed, in approximate order of severity, some of the options open to a country in terms of restrictions on criminals voting.
    1. No restrictions at all.
    2. Those serving a life sentence can not vote
    3. Those sentenced three or more times to prison lose the right to vote while in prison (three strikes and no vote)
    4. Those sentenced to x years or more lose right to vote while in prison (status quo of three years)
    5. Those sentenced to prison can not vote while in prison (proposal of Bill)
    6. Those sentenced to any form of custody (home detention, periodic detention) can not vote while sentence is underway
    7. Those sentenced to prison can not vote while on prison or on parole
    8. Those sentenced to prison can not vote while in prison and for x years after release
    9. Those sentenced to prison are permanently disqualified from voting
    10. Those convicted of any crime can not vote for x years after sentencing
    11. Those convicted of any crime are permanently disqualified from voting
11. Starting at the least restrictive end of the scale, I believe having no restriction at all is highly undesirable. The like of Graeme Burton and William Bell have forfeited their right to vote, just as they forfeited their freedom of movement.
12. A case could be made that only those with life sentences be ineligible to vote, on the basis they will never re-enter society. However with parole a life sentence is not for life. This undermines the logic of restricting it to life sentences only.
13. The status quo is that only those sentenced to three or more years lose eligibility to vote. The problem I have with the status quo is that three years is very arbitrary. If you get sentenced for 2 years and 11 months you retain your vote, and one month more and you lose it.
14. The status quo also has the problem of defending why three years is the right dividing line. Why not four years? Why not seven years? Why not one year?
15. This then brings us to the proposal in the bill. For the ban to apply to any criminal in prison. I believe this to be less arbitrary and a superior dividing line.
16. A Judge does not sentence someone to prison lightly. They will in fact go out of their way to have prison as a last resort. Many criminals have dozens or scores of convictions before they actually get a prison term. Prison is regarded as reserved for either the more serious offences or repeat offenders.
17. Hence having voting rights disappear upon prison sentence strikes me as a more logical threshold. It is the threshold at which a Judge says that someone’s offending against society is so bad, that we have no choice but to remove their liberty and lock them in a cell.
18. I also believe that the right to vote is part of a person’s liberty, and it is quite consistent to lose that right upon going to prison – just as you lose the right to free speech, to freedom of movement, to freedom of what you watch, to freedom of sex, to freedom of meal choice etc.
19. On a practical note, it also means that it is easy to administer – no polling facilities or special vote facilities are made available in prison. No needing to work out which prisoners can or can not vote.
20. As I said earlier, there is no clearly right place to draw the line. Arguments can be made for or against most of the options I have outlined above. However I believe the preferred option is to link it to imprisonment, as this bill does.

In summary I urge the Justice and Electoral Committee to recommend the Electoral (Disqualification of Convicted Prisoners) Bill be passed.

David Farrar

Have just filed my submission, which is copied below. Submissions close tomorrow – you can submit online here.

Overall the bill is pretty good and has the basics right, but there are a number of ways it could be improved (in my opinion) and the submission focuses on that.

SUBMISSION OF DAVID FARRAR
TO THE ELECTORAL LEGISLATION SELECT COMMITTEE
ON THE ELECTORAL REFERENDUM BILL

About the Submitter

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

3. I support the Electoral Referendum Bill as an appropriate measure to allow New Zealanders to decide whether to continue with MMP or choose another electoral system, and urge the Select Committee to pass it.
4. I do propose some changes, for the consideration of the Select Committee, and the Government.

   Meaning of Referendum Advertisement
   

5. Clause 30(2) provides for certain publications not to be treated as a referendum advertisement. The definitions are drawn from the Electoral (Finance and Advance Voting) Amendment Bill.
6. For both bills, I believe the current definitions may end up capturing as advertisements, expression of views that should not be considered an advertisement.
7. Specifically I propose that Clause 30(2)(b) have the word “solely” replaced by “primarily” in relation to news selected by an editor, as the test of “solely” is too narrow.
8. I also propose that Clause 30(2)(f) relating to an individual publishing his or her views on the Internet delete the words “on a non-commercial basis” as this could capture bloggers who have advertising on their blog. They key test is that the views are his or her personal political views.

   Registered Promoters
   

9. I support the requirement for a promoter to register with the Electoral Commission if they spend greater than $12,000 on referendum advertising during the regulated period. This is a welcome additional transparency measure.
10. I do not support there being an expenditure limit on a promoter. There is no more important decision for voters than the choice of electoral system, and Parliament should not restrict individuals from promoting their views.
11. The New Zealand voter have shown they are very capable of not being overly influenced by high spending campaigns, and in fact often such campaigns have in fact become counter-productive. I have faith in the media, and others, to shine sunlight on any referendum campaigners.
12. I also note that any expenditure limit would be trivial for a person or group to get around. Overseas experiences have shown this clearly.
13. Clause 37(1)(d) specifies the contact details of registered promoters and their agents must be provide to the Electoral Commission. I recommend the clause be amended to specify that the contact details must at a minimum include full names, dates of birth, physical address and contact phone numbers so the identity is fully transparent. This also applies to Clause 43(2).

    Scope of MMP Review
    

14. I welcome the proposed review of MMP, should the vote be for retention.
15. I propose that the scope of the review include the 5% maximum tolerance from quota for electoral populations. Without pre-arguing the issue, there is a strong case for a larger tolerance under MMP.
16. I also propose that the review explicitly include any recommendations made by the 1986 Royal Commission, which are not in the current Electoral Act. . This includes the proposal that Maori parties are exempt from the (5%) threshold for representation, in exchange for an end to the Maori seats, so would remove 56(3)(a). If the Royal Commission recommended it, I believe it it is worthy of reconsideration.

    Form for referendum voting paper.
    

17. I believe it would be preferable for the four options in Part B to be ranked through a preferential ballot, rather than have one option selected through first past the post.
18. If voters vote for change in Part A, then the run off option in Part B may be chosen for the next referendum with as little as 25.1% of the vote.
19. One may end up with considerable tactical voting if FPP is used in Section 2. If a voter is very opposed to one option being selected, they may then vote for not their preferred option, but the option the polls tell them is most likely to beat out their least preferred option.
20. To use an actual example, let us say Jane dislikes FPP and whatever happens does not want that as the run off option. Her preference may be STV but the polls shows STV has 20% support, PV 18% SM 30% and FPP 32%. Tactically she may choose to vote for SM to stop FPP winning, rather than her true preference of STV.
21. A preferential ranked ballot in Part B will allow people to rank options in their true order of preference. There is a risk it will be a bit more confusing to ask voters to rank four options, rather than select one, but this can be mitigated by allowing them to only rank one or more options.
22. Also voters may choose to learn more about all four systems, if they realise they have to rank them, than just go for the system they feel they already know something about.

    Date of Second Referendum
    

23. While this is outside the scope of this bill, I feel it would be useful to air this issue, as the Select Committee can make a recommendation in the commentary of the bill.
24. Initially I concluded that both referendums must be held with general elections to maximize turnout. We saw in 1992 a rather low turnout of 55% as that referendum was held separate to an election.
25. Upon further reflection I have concluded that the initial referendum that this bill establishes should remain timed to coincide with the 2011 general election. As it is an indicative referendum only, and one with multiple options, it would suffer from lower turnout if run as a stand alone referendum.
26. However I believe the second referendum would attract a very high turnout, even if held apart from a general election – for example in early 2013. As the vote would be binding, and would be to change the basic electoral system of New Zealand, I believe it would have a high turnout, even if standalone. I note that the stand alone 1997 referendum on compulsory superannuation had an 80% turnout, only 5% less than the 85% turnout in 1993.
27. The strongest reason however for a standalone second referendum is that without the distraction of a general election, there will be a much greater focus on the referendum, and the two options, and associated implications. A decision to change electoral systems will probably be a once in a lifetime decision for most voters, and it deserves having its own space and time to get as many voters as possible educated and informed on the choice they have, rather than have it as a minor side-show to the general election.

    Drafting of Alternate Voting System
    

28. Should voters vote for a change from MMP, the preferred alternative needs to be made into a statute that will become the new Electoral Act if it is voted for in the second binding referendum.
29. I support the proposal by Graeme Edgeler that the Electoral Commission be tasked with producing the first draft of the alternate voting system, just as they have been tasked with doing the first draft of a review to MMP if MMP is retained.
30. Parliament would still make the final decisions as to how the alternative voting system will precisely work, but by having the Electoral Commission do a first draft, it will make any changes by Parliament transparent. Details such as the number of electorate and list MPs in an SM electoral system will be critical details.

    Counting of the Votes
    

31. I appreciate the desire to reduce costs by having the referendum votes counted after election night, and also the desire to have the results of the general election given priority.
32. However the proposed law removes some of the safeguards we have around voting, such as scrutineers and striking out of multiple voters. I believe the safeguards these provisions give us outweigh the concern over cost.
33. Hence I propose that the referendum be counted on election night, following much the same processes as the general election, except that any counting at a polling place only commence once the general election ballots have been counted.

In summary I urge the Justice and Electoral Committee to recommend the Electoral Referendum Bill be passed, with amendments as highlighted above.

David Farrar

Last Friday I attended a workshop of around 15 people, with the aim being to go through the Government’s Electoral Finance legislation and identify potential improvements. It was (I thought) a very useful meeting, and some of the output will flow through in submissions.

The attendees were a mixture of lawyers and academics, including some overseas experts.

Generally the workshop was not about pushing for policy changes to the proposed bill, but how to make it work more effectively and close down unintended loopholes etc.

However it did sometimes reach into policy areas a bit. When we were trying to come up with a definition of the regulated period that is not retrospective, but handles early and late elections, the consensus was that the best solution would be a fixed term of Parliament – like the US has.

Also the consensus (only one person not favourable) was that a four year term would be a significant improvement.

By coincidence Labour MP Iain Lees-Galloway has blogged today:

We’ve just passed the half-way mark of this term of Parliament. As a first-term MP I can tell you it has flown by and I can’t believe we will be back into election year next year.

A lot of people in my electorate have commented that our 3-year term seems incredibly short.

Most have stated a preference for a four-year term, but wouldn’t want to go as far as five years.

I guess under FPP we didn’t want to wait too long before we got to tell our MPs how they were going. But under MMP would we be better off with a slightly longer term?

No Right Turn is against, but the Dim Post is in favour.

I am a very strong supporter of a four year fixed term. I think doing so, would significantly improve Government decision making. It would also mean parties would not need to raise as much money privately, as elections would be less frequent.

In the US the House has a two year term, which means they are in near permanent re-election mode. Hence some badly needed laws (such as immigration reform) never get passed as the next election is always around the corner.

In New Zealand, only the middle year tends to be highly useful. The first year is spent implementing the manifesto, and the third year is spent doing as little as possible to upset people. The second year is the opportunity to implement policies and laws to deal with “harder” issues.

So a move to a four year term, would effectively double the amount of time Parliament has in dealing with issues that are not easy to deal with in sound bites.

I suspect Governments would tend to end up normally serving two terms of four years, rather than three terms of three years.

Now any changed has to be approved by the people, and in 1967 only 32% voted for a four year term and in 1990 it was only 31%.

However I think with a fairly popular Government in place, one could get a majority to agree – especially if the implementation was not immediate, but say from 2017 onwards for example.

The 1990 vote was take when the electorate was desperate to throw Labour out of office, and the last thing they wanted was another year before they could do so.

The 1967 vote was taken halfway though a Government’s third term of office – again not an ideal time.

Would be great to have a private member’s bill for a referendum on the term to be held with the 2011 election.

The Herald approves of the electoral finance bill:

The Government’s long-awaited bill reforming electoral finance law solves many of the problems created by its contentious, discredited and repealed 2007 predecessor and the dated 1993 Electoral Act. …

It is better than both the EFA and the status quo. Personally I wanted to see considerably more reform, but accept the Government made a decision not to push through changes, which did not have wide parliamentary support. Effectively Labour were given a veto over the changes.

Several new measures have been raised since details of the reforms were announced in February.

The most welcome is news that a separate bill will finally be introduced to tighten the use by parties and MPs of parliamentary funds to campaign to voters. …

A bill later this year will align the parliamentary and electoral law definitions in the “regulated period” or three months before an election. Parties will no longer be able to spend parliamentary money for communications other than those that “explicitly” seek people’s support or party vote or donations or membership of their party.

News I exclusively broke here, using papers I obtained under the OIA.

The Electoral (Finance Reform and Advance Voting) Amendment Bill sets a three-month regulated period, down from the entire calendar year of an election in the 2007 law, and limits it still further if an election is called fewer than three months from polling day.

The regulated period is shorter if the election date is announced less than three months before the last possible election date, not just the actual election date. Expect to see this change at select committee.

The Dominion Post has advice for Nick Clegg:

Welcome to our world. Britain is about to face the realities of coalition government. The voters have delivered an MMP result under a first-past-the-post system, effectively leaving the Liberal Democrats to decide who gets to form the next government. It is small wonder that the New Zealand Cabinet Manual is being avidly read in Whitehall offices. …

However, Liberal Democrat leader Nick Clegg will have to be careful not to overplay his hand. His party’s tally of 57 seats is fewer than he and others expected, and he needs to be conscious that how he behaves now will play a huge role in how Britons view proportional representation.

Mr Clegg is unlikely to have a better chance to push the cause of electoral reform with the other parties than he does now while still in the role of kingmaker – at the time of writing no deals had been struck – but if he is seen as putting his party’s interests ahead of those of the country, or of seeking to be the tail that wags the dog, there will be a backlash.

As some NZ parties have found.

And the ODT looks at local government:

The pros and cons of what exactly are local government’s “core activities” continue to be debated by the public in a somewhat desultory fashion, while it is obvious central government has long embarked on providing the statutory means by which local councils can shed what might once have been regarded as essential services in favour of the private sector. …

Mr Hide’s Local Government Amendment Act 2002 Amendment Bill, which has received its first reading in Parliament and will now be further considered in select committee, enables local councils to offer tenders to private companies to provide water services for up to 35 years, essentially a technical change since councils can already take that action, but only for a 15-year period.

He has argued that the change is necessary because 15 years is not sufficient to enable an adequate return on the economic life of water assets.

In other words, his Bill is designed to make the possibility of privately contracting water services more attractive.

But even if the Bill survives without radical change, it does not necessarily mean water services will be privatised.

Indeed, councils will retain control of services should they opt to have components contracted to private providers; the restrictions on the sale of council water services in the Local Government Act 2002 remain.

d

There is a bit of confusion over this. The Herald reports:

The Government has released its Electoral Finance Reform Bill. Have just started reading it myself.

Mainly based on previous cabinet paper. One significant change is they have changed the regulated period definition so that it can never be retrospective (which is very important). So if a PM gives less than three months notice of an elections, the regulated period will be from the day of announcement.

Some key details:

• Comes into force 1 January 2011
• exemption from regulation as advertisements “the publication by an individual, on a non-commercial basis, of his or her personal political views on or through the Internet or any other electronic medium.”
• Regulated period starts the later of day after PM announces date or 3 months before the election date
• A significant non financial change – anyone on the printed roll can now do an advance vote, without having to justify why.
• Non party/candidate promoters must register is spend is over $12,000
• Electoral Commission can provide advice on whether a proposed ad is an election ad
• Candidate spending limit $20,300 (and inflation adjusted)
• Party spending limit is $1,015,000 plus $20,300 per electorate, which is a possible $2,436,000 for all 70 electorates
• requirement for corporate donors to declare all their “associated entities” so donations can’t be split between them to avoid disclosure
• $1,000 limit for donations from overseas persons
• New disclosure requirements for total amount of donations (but not identities) in three main categories – under $1K, $1K to $5K and $5K to $10K

Already spotted a few clauses that may have unintended consequences. Looking forward to first reading, and then making a submission. I will also put the case for reconsidering the decision to not liberalise the broadcasting allocation and limits.

The Justice & Electoral Select Committee has reported back on the Electoral (Administration) Bill.

Their recommendations are:

• The Electoral Commission remain an independent Crown entity
• rejected making it an Officer of Parliament, as it has a responsibility to deliver smooth running elections, and a Minister, not the Speaker, should be responsible for the performance of that function
• Key change is the the three Electoral Commissions are ow effectively appointed by Parliament, rather than the Minister of Justice. This is a key issue which myself and other submitters asked for.
• A minor change is that the Chief Electoral Office can not be the Deputy Chairperson. This is a suggestion I made, so it does show the value of taking the time to make submissions.

Personally I still a bit nervous that a Government with a majority in the House could force through appointments which do not have widespread support, but hopefully future Governments will place a premium on the desirability of consensus around any names they place before the House.

But overall the Select Committee has nicely improved the bill, and it should get passed into law without difficulty.

It will be interesting to see in due course who the three Commissioners are.

Paul Quinn’s private member’s bill to ban all prisoners (rather than just those serving terms of greater than three years) from voting passed its first reading by 63 votes to 58.

National and ACT voted in favour. Labour, Maori, United, Greens and Progressive against.

It has been referred to the Law & Order Select Committee, which will hear submissions on it. I would be interested to find out how many prisoners actually do vote, and how many are eligible to vote.

Last week a courier delivered a fairly large batch of documents to me, from the Ministry of Justice. They were all their internal papers on the latest electoral finance reform, which I had requested under the OIA. There were a couple of deletions (which I may appeal to the Ombudsman) but what they did deliver has revealed what reform packages were considered by the Government, and hence what we might have got.

This table shows the positions of the five main parties (more than one MP) on some of the key issues.

The Government put great weight on having consensus amongst parties, in contrast to the Electoral Finance Act. Effectively the Labour and Green parties were given a veto over any changes from the status quo. This meant that that changes I personally would have liked to have seen, did not occur.

On the issue of the taxpayer funded broadcasting allocation, National and ACT supported allowing it to be spent on any medium (not just TV/radio) and allowing parties to purchase their own broadcasting time. Labour and Greens opposed this

Views on the donation disclosure limit ranged from $1,000 to the status quo of $10,000.

Labour and the Greens supported a cap on the amount one donor can donate. The Greens advocated $35,000.

In terms of the party spending limit, the Greens supported adjusting it for inflation retrospectively (which I support). National oddly had no position on this. Labour wanted inflation adjustments to apply from 2008 onwards only, and ACT suggested a limit of $1.50 per person (which I also support).

National and Maori Party supported a 3 month regulated period. Labour and Greens a six to seven month period (from 1 May) and ACT a period of around four weeks (from Writ Day).

National and ACT did not support a spending limit for parallel campaigners. Labour supported a spending limit, but did not say what. As they advocated a $100,000 threshold to register I presume a fairly high limit. The Greens wanted a low threshold to register and a $120,000 spending limit. Maori Party supported some limit.

Simon Power put up five options to Cabinet. They were:

1. Consensus Package – changes which all or almost all parties supported
2. Comprehensive Package – a full reform package which includes reforms supported broadly by parties on the right (broadcasting liberalisation, higher spending caps) and reforms supported broadly by parties on the left (spending limits for parallel campaigners)
3. Parallel Campaigning Package – a left leaning package which is the consensus package plus more regulation of parallel campaigning
4. Broadcast Reform Package – a right leaning package which is the consensus reform package plus liberalisation of the broadcasting regime.
5. Status Quo

Packages 3 and 4 were politically untenable. The left would attack Package 4, and the right would attack Package 3.

The comprehensive reform package, as it had aspects supported by both left and right, could have been politically feasible. I don’t know if it would have been supported by both sides, or attacked by both sides, so I guess in the end the Government went for the safer consensus package of limited change.

A matrix showing the salient aspects of each package is below:

The comprehensive package would have seen the taxpayer funded broadcasting allocation able to be spent in any media, and parties able to buy their own broadcasting time (so long as under an overall spending cap).

The spending caps would have increased by inflating adjusting back to 1995.

Parallel campaigners would have a spending cap of $500,000 but be able to purchase their own broadcast advertising.

Before the Electoral Finance Act, I would have quite happily supported a reform package based on the comprehensive package. The third party spending cap of $500,000 is four times higher than the EFA, and the other gains (higher spending caps, ability for political and third parties to buy broadcast advertising) more than compensate for this.

The EFA, partly because of the malignant way it was negotiated in secret, and the hypocrisy that the Government was trying to clamp down on taxpayers spending their own money, yet exempt parties taxpayer funded parliamentary spending from the campaign cap, generated great hostility to the idea of third party spending caps. I helped lead that hostility.

In a post EFA world, I am not sure even a $500k spending cap would not face significant public resentment. It would have been widely supported before the EFA, but as a trade off to the other liberalisations may have been a package worth pursuing.

One other interesting revelation from the OIA documents, is that the consensus package originally included a lowering in the donation disclosure limit for parties from $10,000 to $5,000.  This was absent from the final package announced publicly, so Cabinet presumably did not support that.

Last week the House established a special Electoral Legislation Select Committee, to consider the electoral finance and the MMP referenda bills.

It is set up to specifically include all seven Parliamentary parties, to try and continue the consensual approach Simon Power has fostered in this area. The difference between this and Labour’s approach to the old Electoral Finance Act is massive.

According to Dave at Big News, the committee is:

1. National (4) – Amy Adams (Chair), Hekia Parata, Paul Quinn, Chris Tremain
2. Labour (3) – Lianne Dalziel, Pete Hodgson, Darren Hughes
3. Green (1) – Metiria Turei
4. Maori (1) – Rahui Katene
5. ACT (1) – John Boscawen
6. United (1) – Peter Dunne
7. Progressive (1) – Jim Anderton

Not that I expect too many divisions on partisan lines, but note the CR parties have six members, CL five members and Maori Party one member. So neither CR nor CL have a majority.

The appointment of Amy Adams as Chair is notable, as she has only been an MP for just over a year. Amy is hugely competent, and a very strong performer. I expect she will be the first of the Class of 2008 to become a Minister.

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!