Kiwiblog

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 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!

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.

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 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.

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.

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.

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.

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

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.

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.

MMP Submission

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.

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.

Former Labour Party General Secretary Mike Smith blogs:

Donations over $30,000 from the same source must be declared to the Electoral Commission within 10 working days. National overstepped the mark in declaring a total donation of $86,005 from Gallagher Industries outside the limit. I can sympathise as I missed a connection once when I was Labour’s Secretary. These days  the Electoral Commission doesn’t get involved – the penalty is a fine of up to $40,000 on summary conviction.

That’s a very serious accusation. As Mike Smith says, a late return can result in a $40,000 fine. So let’s see if National were late.

The Electoral Commission says that National received $66,705 on 20 December 2001 from the Gallagher Group Ltd. This was on top of an earlier $19,300 so exceeded the $30,000 threshold for reporting within 10 working days.

It was declared on 10 January 2012, 21 days later.

But the Electoral Act refers to working days, as quoted by Mike Smith. S210C(6) says:

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

Now what is a working day? Well the Electoral Act specifies that in S3:

working day means any day of the week other than—

• (a) Saturday, Sunday, Good Friday, Easter Monday, Anzac Day, Labour Day, the Sovereign’s birthday, and Waitangi Day; and

• (b) a day in the period commencing with 25 December in any year and ending with 15 January in the following year

The 20th of December was a Tuesday. Friday 23rd December was the third working day and Mon Jan 16th the 4th working day. Tuesday 24 January 2012 is in fact the 10th working day after the 20th of December 2011.

So National made the deadline with a fortnight to spare.

Mike may wish to amend his post.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Idiot/Savant at No Right Turn comments:

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

Dead right.

The Electoral Commission has launched an referendum toolkit at www.referendum.org.nz.

It has an extensive range of fact sheets and videos on the five different electoral systems. Very readable and simple. They have nifty features such as “Which voting system is right for me” which asks you questions on what you think is important, and how important, and then measures the systems against your preferences.

They also have a You Tube channel. One of the videos  I have embedded below. They are all quite short, so worth viewing all five of them.

By coincidence I was at Waikato University yesterday, speaking to the NZ Law Students Association Conference on the referendum. I was on a panel with Margaret Wilson and Tim Macindoe. For those interested, I’ve embedded my presentation below. Note this is my presentation, not from the Electoral Commission.

MMP Presentation DPF

Simon Power announced last week:

The Government today named two members of the new Electoral Commission, which has been created as part of the Government’s wider programme of electoral reform.

Justice Sir Hugh Williams QC has been appointed chairperson, while Robert Peden will be Chief Electoral Officer.

There should be no controversy over these appointments. Sir Hugh is the current president of the (old) Electoral Commission, and Mr Peden was the Chief Electoral Officer, of the old Chief Electoral Office in the Ministry of Justice. Both very solid choices.

One further Commissioner is to be appointed, and he or she will automatically be Deputy Chairperson.

The Electoral Commission has announced:

The Electoral Commission is considering an application made under Part 4 of the Electoral Act 1993 to cancel the registration of the following political party and logo:

Party: The Bill and Ben Party

Goodness, I wonder what caused them to decide to deregister?

If there was no (5%) threshold for Parliament, they would have got one MP at the last election.

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.

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 Alliance has just won a court case against the Electoral Commission. The judgement is here – CA6392008.

The Court of Appeal has ruled that the Electoral Commission must give political parties time for both an opening and a closing address. In 2008 the Commission gave the Alliance (which got 0.07% of the vote in 2005 and 0.08% in 2008) and ten other minor non-parliamentary parties one minute for an opening address and no time for a closing address, out of the total 72 minutes made available from broadcasters for opening addresses and 30minutes for closing addresses.

Now s73(1) of the Broadcasting Act says:

In respect of each election period, the Electoral Commission must allocate to political parties, in such proportions as the Electoral Commission considers appropriate, the time that TVNZ and RNZ have made available for opening addresses and closing addresses in accordance with section 71A.

The question was whether the Commission must give each party both an opening and closing address.

The High Court found it would be wrong under the Bill of Rights Act to give a political party no time at all for either opening or closing, but that s73 refers to a single allocation of time, and some components of that allocation may be zero, so long as the total allocation is not zero.

The Court of Appeal has sided with the Alliance and ruled that the Act requires each party to get time for both an opening and closing address, despite the fact they had only 30 minutes of closing time for 18 parties.

What is interesting is that the Court of Appeal suggests TVNZ breached the ACT by only providing 30 minutes for closing addresses, as this is not enough time to divide up between 18 parties, considering the parties on 40% in the polls are meant to get more time than those at 0.07%. TVNZ may face problems if they do not increase the allocation next election.

The Court also deals with the issue of whether the Electoral Commission should have given more than $10,000 to non-parliamentary parties for their broadcast advertising. The Commission escapes a formal ruling from the Court, but it notes that their reference to the amount being enough for a radio campaign was in error, as it suggests they knew the amount was not enough for a television campaign.

So the Electoral Commission gets pretty battered by this decision. But the good thing is, the law is now clearer. And hopefully the law will also be changed so parties can spend their own money purchasing broadcast advertising, rather than only be allowed to use taxpayer money.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

CHARLES CHAUVEL (Labour) :

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

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

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

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

Excellent.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Submissions will be open until 30 October 2009.

The poor folks at the Electoral Commission are still working their way through some complaints under the Electoral Finance Act. They have released six decisions:

1. Pacific Party had a qualified audit report as they had faulty records. No surprise with Taito Philip Field in charge.  The Commission found they had breached the Act but it was too inconsequential to refer to Police.
2. Direct Democracy Party has not filed a donation return, which is an offence. However too inconsequential to refer as they have deregistered.
3. Republic of NZ Party has not filed a donation return, which is an offence. However too inconsequential to refer as they have deregistered.
4. Maori Party were given use of a house for free, to use and rent out. As it was from an overseas person this was an offence, but they refunded the rental gained and too inconsequential to refer to Police.
5. Road Transport Trust donated to a number of political parties. The Electoral Commission ruled they should have disclosed who the contributors to their donations were, but no offence as there was no intent to conceal.
6. Pro-National Asian Video. The Commission found no offence by the NationalParty as the Party’s Financial Agent did not authorise the video, but the person who published it without authorisation may have breached the Act and will be referred to the Police.