Electoral Commission off to Court of Appeal

May 2nd, 2015 at 4:00 pm by David Farrar

The Electoral Commission announced:

The Electoral Commission today filed papers with the Court of Appeal seeking to clarify the meaning of “election advertisement” for the purposes of the Electoral Act following two recent decisions of the High Court that appear to take different approaches to the legal interpretation of its meaning.  The Commission is also seeking to clarify the meaning of “election programme” under the Broadcasting Act. …

In the lead-up to the 2014 General Election, two cases were brought before the High Court challenging advisory opinions provided by the Electoral Commission which had advised that certain items were “election advertisements” under section 3A of the Electoral Act.  The Commission has lodged an appeal of the more recent decision to clarify the approach the Commission should be taking to the interpretation of “election advertisement” when issuing advisory opinions and to “election programme” when providing advice on election broadcasting.

The appeal is limited to questions of law.  The Commission is not seeking to challenge the findings in the Watson decision as they applied to the particular facts in that case. 

It’s good that they are not looking to challenge the specific findings in the Planet Key decision. This means the court case is just about getting clarity on the law for future.

Again I think the time has come for broadcasting to be treated the same as other mediums for electoral purposes, so the same law applies to all advertisements.

Satire still legal

April 4th, 2015 at 7:00 am by David Farrar

The Herald reports:

A satirical song that poked fun at Prime Minister John Key was not an election advertisement or programme and it was wrong of the Electoral Commission to ban it, a High Court has ruled.

In a decision released today, Judge Clifford of the Wellington High Court found that the Planet Key song by soul and blues star Darren Watson was not election material.

Good. We need more satire.

Personally I think the Broadcasting Act should be changed so that the restrictions on election programmes should be lifted, so that parties and third parties can broadcast advertisements as they want – so log as within the total spending cap. Broadcasting as a medium should be on the same basis as print.

Andrew Geddis has a lengthy piece on the ruling, which is a good read for those interested.

Greenpeace taking Electoral Commission to court

July 15th, 2014 at 11:00 am by David Farrar

Newstalk ZB reports:

Environmental groups are taking the Electoral Commission to court over a ruling on a climate change campaign.

Greenpeace, Forest and Bird, WWF and others launched the Climate Voter initiative last month.

But the Electoral Commission says the campaign counts as an “election advertisement”, and is therefore subject to rules around wording of communications and spending restrictions.

Greenpeace says the ruling could gag grassroots advocacy groups – and the organisations are planning to take a freedom of speech test case to the High Court.

Greenpeace spokesman Steve Abel says it’s become a free speech issue.

“Organisations that are advocating for anything, whether it’s better cancer funding or milk in schools or lower taxes, the organisations should be able to do that without having to put a promoter statement on under electoral law.”

Organisations can advocate on issues without promoter statements. But if they are seen as encouraging a vote for or against a political party, then they need a promoter statement.  As this is a campaign headlined “Make your vote count” I am not surprised the Electoral Commission thinks they should have a promoter statement.

You might wonder why they don’t just stick a promoter statement on their website. The organisations backing it are already known. So why are they going to court, rather than sticking on a promoter statement?

Well Greenpeace has another lawsuit before the courts at the moment (a supporter might ask what proportion of their donations are going on lawsuits!) fighting the decision to deregister them as a charity due to their political advocacy. If they put a promoter statement on their website, then they weaken their own case that they are a charity, not a lobby group. So to try and keep up the pretence they are a charity, they are going to court again.

I hope the Electoral Commission seeks costs, if Greenpeace loses.

Broadcasting Allocations

June 7th, 2014 at 9:00 am by David Farrar

The Electoral Commission has released its funding decisions for broadcasting allocations. Sadly political parties are banned in law by being able to purchase broadcast advertisements. The get allocated an amount by the Commission, who have $3.2 million for this purpose.

The criteria the Commission use are:

  • Party and electorate votes at the last election
  • Votes at any by-elections since
  • No of current MPs
  • Any alliances (Mana-Internet)
  • Polls
  • Membership
  • Fair opportunities

I’ve done a little table showing the amount allocated to the main parties, and comparing it to their party vote last time, and the average in the public polls since the election (up until when the Commission met).


These are not the only two criteria, but it is interesting to look at the results. Based on vote at the last elections National and Conservatives get a $1 per vote. Labour, Greens and NZ First $1.36 to $1.62 and the smaller parties $3 to $5. This is pretty standard that the smaller parties get proportionally a bit more.

In terms of dollars per average % in the polls, National gets $23,000 per %, Labour $28,000, Greens $33,000, Conservatives $38,000 and NZ First 38,000.


Is the Dotcom Party democratic enough to be registered?

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

S71 of the Electoral Act states:

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

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

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

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

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

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

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

The full rules are here.

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

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

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

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

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

Cunliffe breaches election day law

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

The Press reports:

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

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

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

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

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

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

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

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

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

The Whangarei Council sacking

September 17th, 2013 at 12:00 pm by David Farrar

TVNZ reports:

A Whangarei District Council employee has been fired for nominating a candidate for mayoralty.

Jan Walters-Gleeson signed a nomination form last month for Stan Semenoff, a former mayor of Whangarei who is re-standing.

My first reaction was that the Council was wrong to do so. Employees have a right to nominate, or even to stand. But there is a complicating factor.

Ms Walters-Gleeson, who is the personal assistant to the mayor and chief executive of the Whangarei District Council, was sacked two weeks ago, Radio New Zealand reports.

Being the PA to the Mayor makes this case more nuanced. I think it is fair enough to conclude that you can’t have a Mayoral PA who nominates a challenger to the Mayor. How could you possibly have a working relationship with the Mayor after that?

I can’t fathom how Ms Walters-Gleeson could have though that there would be no consequences to doing this.

Now having said that, I think the better response from the Council would be to move her into another job, rather than sack her. She obviously could not continue as the PA to the Mayor, but could continue as a PA in another section of the Council.

Mr Dunne said her dismissal appears to be a gross breach of her rights as a citizen to participate freely and fairly in the electoral process.

“I am surprised we have heard nothing so far from the Electoral Commission, given its oversight role of electoral processes, about the infringement of Ms Walters-Gleeson’s rights as an elector.

I am not surprised as the Electoral Commission does not run local body elections, but more to the point they have no role in employment law. There is no dispute about the validity of the nomination form, just a dispute over a sacking.

According to Radio New Zealand, Ms Walters-Gleeson will fight for her reinstatement.

As I said, I think she should be employed elsewhere in the Council. But one can not expect to be PA to the Mayor when yerou sign the nomination form of a rival. It would be like claiming that an MP’s EA could nominate their election opponent, yet still be the MPs EA.  I’m not sure Peter Dunne would be too happy if his EA had signed the nomination form of Charles Chauvel!

UPDATE: I’m told the current Mayor is not standing, which makes it less of a judgement of error. I still think a Mayoral PA should not sign any Mayoral nominations forms. However the appropriate response is to transfer, not sack.

Dunne on party registration law changes

August 16th, 2013 at 12:00 pm by David Farrar

Peter Dunne blogs:

First, it was UnitedFuture, not the Electoral Commission, that raised the issue of the difficulty we were having verifying the status of some of our members. Had we just signed the annual statutory declaration that we had 500 financial members the Electoral Commission would have been none the wiser because it has no power to check the accuracy of a party’s declaration. So we were deregistered for being honest, which is quite absurd. Therefore, my Bill will require the Electoral Commission to formally audit the membership of all registered parties once every three years to ensure they do in fact have a minimum of 500 financial members, and are not just saying so in the sure knowledge they will not be checked up on.

I think it is a great idea to have the Electoral Commission audit membership claims.

The next absurdity was the Electoral Commission’s archaic insistence that we produce 500 individually signed declarations and its refusal to accept on-line memberships. That is totally out of step with today’s reality so my amendment will ensure on-line memberships will be treated as valid for registration purposes, and will make the Commission subject to the provisions of the Electronic Transactions Act, something it is currently specifically exempted from.

Also a good idea. To be fair to the Electoral Commission they have to act within the current law.

Third, I am proposing that where a party that has been registered for at least two elections is deregistered it will be able to lodge a re-registration application within 90 days, without being treated as a new party. The Electoral Commission kept telling us that UnitedFuture was clearly not a new party – having been around for nearly 20 years – but under its internal rules (not the Electoral Act incidentally) it claimed it had no option but to treat us a new party. This is clearly a nonsense – a party cannot be both an established party, yet treated as new party, at the same time.

Obviously some self-interest here. This one I am fairly neutral on. The best course of action is for parties to make sure they clearly stay over 500 members. In fact I think the threshold should be 1,000.

Definitely a bill that should go to select committee, if drawn out.

United Future not there after all

July 10th, 2013 at 9:00 am by David Farrar

United Future have sent this e-mail out to their members:

We sent out an email a couple of weeks ago asking that people print the email and return it to us to support our application for re-registration with the Electoral Commission.

There was an excellent response enabling us to submit the signed forms yesterday. The Commission has come back to us requiring some more signatures as they have issues with enough of the forms to take us under the magic 500 required. I can assure you that we have a lot more than the required 500 members, it’s the signed forms we don’t have enough of. We are trying to get the process completed as quickly as possible hence the urgency.

It’s up to you! If you are able to print, sign and date this email then scan and email it back to xxx we will be able to complete that part of the registration process.

Thank you for your initial response, it is greatly appreciated. Your assistance with this request will get the job done.

Many thanks, 

So looks like some of the forms were non-compliant, hence it may take even longer.

United Future submits 500 members

July 9th, 2013 at 12:00 pm by David Farrar

The Herald reports:

Independent MP Peter Dunne will submit 500 individually signed declarations from members in an effort to register the United Future party today. …

He said he was disappointed the commission would not take six to eight weeks to check the validity of the members’ forms.

“Even if it was to check every one of the memberships, not just a sample, it would not be unrealistic to expect the process to be completed within five working days,” Mr Dunne said.

The time frame just seems unusually long. It takes around a minute to check a name and address against the electoral roll. I know this from experience as years ago one of my jobs was to check that all of National’s candidates were actually on the electoral roll, before we submitted the nominations forms!

I think five working days should be more than enough to verify some or all of the names.

Paper insistence

June 12th, 2013 at 1:19 pm by David Farrar

No Right Turn blogs:

So, United Future is apparently ready to re-register as a party, but has been held up by the Electoral Commission’s insistence on paper membership records.

As someone who has grown up in the internet age, this is simply backwards. In an age where I can get a passport, do my taxes, or submit on legislation online, the idea that I have to fill out an actual paper form to join a political party (as opposed to any other organisation) is just arcahic. But its also possibly illegal. Why? Because in 2002, Parliament passed the Electronic Transactions Act 2002, the thrust of which is basically “electronic stuff counts”. …

So basically the Electoral Commission could accept electronic membership records; they just choose not to. And that choice appears to be contrary to S 8 of the Electronic Transactions Act 2002.

Administrative decisions cannot trump the law. The Electoral Commission needs to drag itself into the 21st century and start accepting electronic memberships. And who knows? Perhaps if you don’t need to use bronze-age technology to participate, people might actually start joining political parties again.

Basically I agree 100%. I don’t belong to organisations that I can’t join online. My membership of National has been done electronically for many years.

United Future deregistered

May 31st, 2013 at 5:08 pm by David Farrar

The Electoral Commission has announced:

On 31 May 2013 the Electoral Commission board cancelled the registration of the United Future New Zealand (United Future) party at the party’s request in accordance with section 70 of the Electoral Act 1993.

Section 70 says:

The Electoral Commission shall cancel the registration of a political party at the request of one of the persons specified in section 63(1) if satisfied that the request for cancellation is made by the applicant on behalf of the party.

I presume they asked to be deregistered as they no longer had 500 financial members.

I don’t think this affects Peter Dunne’s status in Parliament, or as a party leader, as they were a registered party when elected. It does mean that if he stands again, it will be as an Independent or for an unregistered party.

United Future have said:

UnitedFuture Party President Robin Gunston today announced that the party has asked the Electoral Commission to cancel its registration as a political party while it clears up inconsistencies in its confirmed membership numbers.

“While we have well over the 500 members required under Section 71 A of the Electoral Act for a political party to be registered, there are inconsistencies in the party’s records around current addresses and the financial status of some of those members,” Mr Gunston said.

“Quite simply, this meant that we could not, hand-on-heart, sign the required statutory declaration to swear to our membership.

“For that reason, we have asked the Electoral Commission to cancel the party’s registration while we confirm the numbers.

Personally I think the threshold should be at least 1,000 members.

Conservative Party candidates referred to Police

April 17th, 2013 at 10:00 am by David Farrar

The Electoral Commission has announced:

On 15 April 2013, the Electoral Commission referred Larry Baldock and Peter Redman, Conservative Party of New Zealand candidates at the 2011 general election, to Police for filing a false Candidate Election Expenses and Donations Return.

It is an offence under section 205N of the Erlectoral Act 1993 for a candidate to file a false return.

The Electoral Commission has also referred Larry Baldock for paying, or arranging another person to pay, election expenses in excess of the $25,000 maximum specified in section 205C of the Electoral Act 1993.  This is an offence under section 205F of the Act.

This is quite rare. Reading between the lines it looks like some election expenses were not declared, and in the case of Baldock those expenses would have put him over the $25,000 limit.

Baldock stood for Tauranga and got 1,512 votes or 4.2%. Peter Redman stood for Bay of Plenty and got 1,306 votes or 3.7%.

Peter Redman declared no donations and $42 of expenses.

Baldock declared a donation of $24,900 from the Conservative Party and $24,900 of expenses so I’d say it is about some sort of undeclared expense. Maybe it was a joint advertisement for Baldock and Redman and they attributed it all to the party, rather than to each candidate? We’ll find out in due course.

Of course the Police may do nothing, as is often the case. No Right Turn undiplomatically puts it like this:

Of course, we know what will happen: the police will take the complaint, and then forget about it, just as they have with virtually every other complaint referred to them by the Electoral Commission. The police simply don’t care about electoral law. If you steal a television, they’ll throw you in jail. Try to steal an election, and they ignore it.

As they did with Labour in 2005.

This is not the first time the Conservative Party has had issues with its returns. I blogged on these last May.

UPDATE: This NZ Herald story has more details on what may be the issue.

Also of interest to me is that Baldock got only 206 votes more than Redman despite Baldock spending the maximum $25,000 and Redman basically zero. This reinforces again to me that advertising has only a minor impact on votes.

The final MMP recommendations

November 5th, 2012 at 3:30 pm by David Farrar

The Electoral Commission has made its final report reviewing MMP. There is little change from the draft proposals.

The key recommendations are:

  1. The one electorate seat threshold for the allocation of list seats should be abolished. I agree, as I think it promotes tactical voting rather than voting for the best candidate. I do not though it would make Parliament less proportional in some cases.
  2. The party vote threshold should be lowered from 5% to 4%. I also agree. I would not go lower, but I think the original Royal Commission had it right at 4%. it also reduces tactical voting by having a lower threshold.
  3. There should be a statutory requirement for the Electoral Commission to review the operation of the 4% party vote threshold and report to the Minister of Justice for presentation to Parliament after three general elections. I disagree. Let’s not keep tinkering with it.
  4. If the one electorate seat threshold is abolished, the provision for overhang seats should be abolished. I agree.
  5. Consideration should be given to fixing the ratio of electorate seats to list seats at 60:40 to help maintain the diversity of representation and proportionality in Parliament obtained through the list seats. I agree – this means that over time Parliament may grow beyond 120 seats due to population growth in the North Island.
  6. Political parties should continue to have responsibility for the selection and ranking of candidates on their party lists. I agree, but I think there should be greater obligations on parties to involve members.
  7. Political parties should be required to give a public assurance by statutory declaration that they have complied with their rules in selecting and ranking their list candidates. A meaningless feel-good gesture. Better to have some requirements they must meet.
  8. In any dispute relating to the selection of candidates for election as members of Parliament, the version of the party’s rules that should be applied is that supplied to the Commission under section 71B as at the time the dispute arose. Agree.
  9. Candidates should continue to be able to stand both for an electorate seat and be on a party list at a general election. Disagree. I think this turns List MPs into shadow electorate MPs. I would treat the jobs as quite different. Also dual candidacy encourages tactical voting rather than simply voting for the best party and the best candidate.
  10. List MPs should continue to be able to contest by-elections. I disagree, as I think it means the outcome of by-elections are people get elected who are not on the ballot paper, and it encourages tactical voting.

The Government is going to consult with all political parties on the recommendations. I predict they will all continue to advocate what is in their self-interest, rather than what is in the interest of the best electoral system. That is because all parties believe the best electoral system is one that gets them into Government!

The politics of the proposed MMP changes

August 15th, 2012 at 10:00 am by David Farrar

I missed 10,000 Green votes in 2011 when calculating the election outcomes based on the Electoral Commission recommendations. In fact it is National, not Greens, who would lose one seat.

Putting aside the principled issues, this makes the changes politically very scary for National. Without being too dramatic, it is quite possible that National would never have formed a Government since 1993, under the proposed law changes.

  • In 1996 a major reasons why NZ First went with National was that National and NZ First could govern with 61 votes, while Labour and NZ First would also need the Alliance and Peters did not want the Alliance having a veto. If National lost that advantage of being able to  solely with NZ First, Peters could well have chosen Labour.
  • In 2008, the CR parties would drop from 64 to 58 seats. The Maori Party and NZ First would hold the balance of power. People forget the Maori Party has never ever chosen National over Labour. They have only gone with National in a situation where a Labour-led Government was not possible. In 2008, Helen Clark would have offered a lot to the Maori Party to retain office – arguably more than National could.
  • In 2011, it would be like 2008, with the Maori Party holding the balance of power, and they could well choose Labour over National considering they vote with them more often in the House.

So looking backwards, National MPs will be wondering why the hell would they vote for a law change which might have seen 18 years of Labour-led Government. I suspect they see it as a long suicide note.

However they should be careful not to assume the past is the future.

Removing the one electorate threshold only has an impact is a political party can get 1.2% party vote or higher. I have doubts that ACT or United Future can do so, in a sustainable fashion. Mana though is more likely to make 1.2% with non green disaffected lefties defect from Labour. So removing the one electorate threshold may impact the left more.

Likewise on lowering the party vote threshold from 5% to 4%. On the left the Greens look set to stay well above 5% and Mana unlikely to make 4% or 5%. A 4% threshold does make it easier for NZ First to stay on, but they are unlikely to survive long-term once Peters retires or dies. So not that much benefit for the left in 4%.

On the right, National faces an existence without ACT or United Future. The Conservatives got 2.7%. Them making 5% is a hard call, but 4% is more achievable. I hope ACT survives, but if it does not that will leave room on the political spectrum for a new “liberal” party. They would struggle to make 5% but again 4% could be more achievable for them.

So while on past election results the changes would be a disaster for National, they might be beneficial in the future. From a pure self-interest point of view, National should very carefully consider the future as well as the past.

Now personally I support the three recommended changes on the basis of improving MMP, by reducing tactical game playing. But all political parties in Parliament will be looking at them from a viewpoint of “Does it make it more or less likely this will help us form Government”. That is to be expected as you can’t implement the policies that you think are good for New Zealand unless you actually get into Government.

It is clear that the changes would not have been good for National in the past. However in the future I think on balance of probabilities they would be – in the long term.

Parliament under the Electoral Commission recommendations

August 14th, 2012 at 1:00 pm by David Farrar

The Electoral Commission has recommended three significant changes being:

  • Party vote threshold from 5% to 4%
  • No electorate seat threshold
  • No over-hang

I’ve modeled how the 1996 to 2011 elections would look under these changes. They are:

In 1996, this would have resulted in the Nat/NZF Govt being unable to govern as they would have fallen two seats short of a majority.  Rev Graham Capill would have become an MP and Party Leader of a five person party. Either ACT or Christian Coalition would have been needed to join Nat/NZF or it would be a Lab/All/NZF Govt.

In 1999, there would have been no change under different rules.

In 2002, the only change would be United gain a seat and Progressive lose a seat.

In 2005 there would have been a significant impact as the Lab/Prog/NZF/UF Govt would be one seat short. Either the Greens (whom NZF had vetoed) or Maori Party (last cab off the rank) would have been need by Labour also. Alternatively Nat/NZF/Maori/ACT/UFNZ could get 61 seats. Either way the combinations look pretty unstable.

In 2008, National would have been unable to govern without the Maori Party as Nat/ACT/UFNZ would have gone from 64 seats to 58 seats. One could have ended up with a Lab/Gre/NZF/Maori Government.

The only change in 2011 would have been one less Green MP.

So overall in 1996, in 2005 and in 2008 these changes would have meant a different Government being formed, than what was possible under the status quo. It may have seen Labour. not National, form Government in 1996 and 2008 which is partly why Labour likes the proposals, and National do not.

However the past is not necessarily the future. A lower threshold may benefit the CR more than the CL, if it allows the Conservatives in.

UPDATE: I mistyped the party vote for the Greens in 2011, so in fact they stay the same and National would lose an MP in 2011 under the EC proposals. This means that in 2011 as well as 2008 the Maori Party would hold the balance of power.

The Electoral Commission’s draft recommendations on MMP

August 13th, 2012 at 12:04 pm by David Farrar

The Electoral Commission has published its draft recommendations on changes to the MMP electoral system. The key points are:

  • The one electorate seat threshold for the allocation of list seats should be abolished.
  • The party vote threshold for the allocation of list seats should be lowered to 4%.
  • Candidates should continue to be able to stand both in an electorate and on a party list at general elections.
  • List MPs should continue to be able to contest by-elections.
  • Political parties should continue to have responsibility for the composition and ranking of candidates on their party lists.
  • The provision for overhang seats should be abolished for parties that do not cross the party vote threshold.
  • On the basis of current information it would be prudent to identify 76 electorate seats (in a 120 seat Parliament) as the point at which the risk to proportionality from insufficient list seats becomes unacceptable. New Zealand is unlikely to reach that point before 2026.
  • The gradual erosion of list seats relative to electorate seats risks undermining the diversity of representation in Parliament. Parliament should review this matter.

You can provide feedback to the Commission on their draft recommendations.

They will publish final recommendations later this year. Then it will be up to Parliament as to whether or not they adopt them.  It will be interesting if any party proposes a members’ bill to adopt all their recommendations, rather than cherry picking the ones they think personally favour them.

I’m a bit disappointed the Commission has been so timid. I do support lowering the threshold to 4% and abolishing the one seat threshold. However I think they should have recommended greater internal democracy measures for party list rankings, and should have proposed either not allowing List MPs to contest by-elections or indeed even abolishing by-elections (which they talk about but take no stance on). Also no movement on dual candidacy means that the issue which most upsets people the most in my experience, is not dealt with. I think so long as List MPs do not have their own distinct role, and instead remain shadow constituency MPs, we will have significant issues.

So some good stuff there, but overall disappointingly timid.

Enrolment Stats

July 6th, 2012 at 7:00 am by David Farrar

The Electoral Commission has published some interesting stats on how many people in each age group are enrolled, compared to their estimated population.

The stats for NZ as a whole (they have them for each electorate) are:

  • 18 – 24 year olds – 75%
  • 25 – 29 84%
  • 30 – 34 92%
  • 35 – 64 98%
  • 65 – 69 97%
  • 70+ 95%

It is a pity the Electoral Commission doesn’t record centrally who actually voted when they do the scrutiny of the rolls, because then they could calculate the actual voting turnout for each age group, not just the enrolment percentage.

In my seat of Wellington Central, only 58% of under 25s are enrolled.

Some Conservative legal problems

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

Claire Trevett at NZ Herald reports:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

MMP submissions

April 23rd, 2012 at 2:33 pm by David Farrar

Spent this morning at the Electoral Commission hearings into the review of MMP.

I’ve previously blogged on the party submissions, and these were reinforced in their oral submissions. with the exception of the threshold issue, most are calling for no significant change.

Graeme Edgeler submitted in favour of having no threshold, and there was some interesting discussion around that.

I was the only one (so far) who proposed ending dual candidacy and enjoyed when asked about electorate and list MPs saying they are “different but equal”. Yes, I was using an old US quote.

Almost everyone accepted that open party lists are impractical but the Electoral Commissioners did seem quite interested in whether to strengthen the requirement for parties to democratically rank their lists. I proposed that there should be a initial membership vote, which is made public, so the final list can be compared to it to make any changes transparent.

MMP Review Hearings

April 19th, 2012 at 11:00 am by David Farrar

The Electoral Commission is holding hearings for its review of MMP. They are in Wellington on Monday 23 and Tuesday 24 April. Each submitter has 15 minutes.

On Monday at the Ministry of Justice Tribunals- Room 1, Level 1, 86-90 Customhouse Quay, some of the possibly interesting submissions are:

  • National 9.15 am
  • Labour 9.30 am
  • United Future 10.00 am
  • Campaign for MMP 10.15 am
  • Me 11.15 am
  • Graeme Edgeler 11.30 am
  • NZ First 12.15 am
  • Voters for Change 2.00 pm

Electorate Campaign Returns

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

Claire Trevett at NZ Herald reports:

Donations towards MPs’ election campaigns came from diverse sources, ranging from artists to fisheries companies and Australian unions and some disclosed donations well in excess of the $25,000 spending limit.

This is  because the $25,000 spending limit only covers advertising expenses, and also is for the last three months only. The total cost of an electorate campaign is usually in excess of this.

In the three months before an election, candidates can spend up to $25,000. However, there are no limits on spending on election material before that.

And again only certain types of expenditure counts towards the limit.

Labour MP Andrew Little’s disclosure of $29,975 in donations included $2500 from Crafar Farms receiver Michael Stiassny, who is a partner at KordaMentha and chairman of the board of Vector. Mr Little said he first met Mr Stiassny when the pair worked on the collapse of Ansett. They had stayed in touch ever since and were “good mates”.

A former EPMU secretary, Mr Little also disclosed two $1500 donations from Australian unions, including the coal miners’ union which he said had been supportive over the Pike River disaster. The maximum donation allowed from overseas donors is $1500. Todd Energy also gave $5000 to Mr Little and his National Party rival in New Plymouth, Jonathan Young.

That is interesting that Andrew and Stiassny are mates. I don’t know Mr Stiassny, but from  various accounts he is not the most popular person in the country – to be fair that sort of goes with being a receiver.

Also interesting the $3,000 from foreign unions to try and help Andrew win New Plymouth.

The returns showed Auckland Central MP Nikki Kaye spent almost twice as much as her main rival, Labour’s Jacinda Ardern, on the battle for the seat – but Ms Ardern raked in the big donations. Ms Kaye spent $21,347 on her campaign in the Auckland Central seat while Ms Ardern spent just $11,365.

This is spending attributed to the candidate. It is worth noting That Labour  also spent around $10,500 in advertising in Auckland Central on top of that $11,365 and National spent around $3,000. Generally how it works is that most advertisement ask for both the party and the electorate vote so you can split the cost 50/50 if you want. Labour split most of their ads 50/50 while National did not (as they did not want the electorates spending too much of the party vote budget.

However, Ms Ardern declared $27,295 of donations for her campaign – including artworks for a fundraiser from artists John Reynolds, Greer Twiss and Karl Maughan, worth a combined total of $10,750. Ms Kaye got just $5525 in donations – most of it from National’s central office.

Again some context is needed here. These are not the total level of donations for each candidate. They are merely the total level of donations above the disclosure limit of $1,500. If a candidate received 30 donations of $1,000 each, none of that would be disclosed. One can not know from the Electoral Commission returns, how much money a campaign received.

Also a minor correction. National’s head office does not donate money to electorate campaigns – in fact it is very much the other way around – electorates “donate” considerably to the central campaign. The error would be based on the fact that the address used in the return was the Wellington head office address – but that is because electorates are part of the overall party, and that is the official office address. However almost certainly any donation from the party to a candidate is from the local electorate.

All candidate donations of more than $1500 must be disclosed. The return of donations to political parties is yet to be released. All party donations of more than $15,000 must be disclosed and parties will now also have to disclose the number of donations they received in bands of between $1500 and $5000 and $5000 to $15000.

The party returns will be interesting. Any donation over $30,000 has already been disclosed, but we will get to see the donors between $15,000 and $30,000 plus see the overall level of donations in bands.

Submission on MMP Review

April 5th, 2012 at 7:17 am by David Farrar

Submissions on the review of MMP close today for those wishing to appear in person, so of course I finished by submission just after midnight this morning. If you wish to do a written submission only, you have until 31 May.

My submission is below. The summary of my recommendations are:

  1. That the party vote threshold be set at 4%, as originally proposed by the Royal Commission.
  2. That the electorate seat threshold be abolished, subject to the party vote threshold reducing to 4%.
  3. That a party which gains an electorate seat, but does not make the party vote threshold, should be included in the St Lague calculations, but not allocated any quotients in excess of their electorate seats.
  4. That sitting MPs be barred from contesting a by-election.
  5. That dual candidacies be banned, with the possible exception of party leaders who should symbolically be placed at the top of their party’s list even if standing in an electorate.
  6. That parties be required to allow all party members to have a vote on the party’s draft list, and that the results of the membership ballot be made public.
  7. That the status quo with regard to overhangs should prevail.
  8. That the Electoral Act should set a minimum proportion of List MPs to be 33% of Parliament to ensure proportionality and minimize overhang, and that the total size of Parliament should automatically increase if necessary to maintain that ratio.
  9. That the tolerance for electorate seats be increased to 10%
  10. That a superior court be given the power to revise the allocation of List MPs, should an electoral petition affect the eligibility of a party to List MPs.
The full submission is embedded below.

MMP Submission

Progressives gone

March 19th, 2012 at 1:20 pm by David Farrar

Page 1009 of the 15 March NZ Gazette reveals that the Progressive Party has officially disbanded, in that it has had its registration as a registered political party cancelled.

I’m a bit surprised the Electoral Commission hasn’t announced this on their website, or updated their list of parties. Normally I find out from their website, not from obscure Gazette notices.

While the Alliance had a distinct place on the political spectrum, I never worked out what the Progressives stood for, except to have Jim Anderton as Leader.

Better late than never

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

Claire Trevett reports at NZ Herald:

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

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

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

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

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

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

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

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

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