Kiwiblog

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.

The Electoral Commission has an Advanced MMP Quiz. Give it a go. Many of them are trick questions that will catch out all but the experts.

I managed 9/9 but had to think very hard about some of the answers. Post your scores below.

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

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

Proceeding

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

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

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

Prosecuted

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

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

Warning Given

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

These all look reasonable sensible to deal with by warning.

No offence

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

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

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

Simon Power has just announced the appointment of David Henry as the Chief Executive of the Electoral Commission:

David Henry has been appointed Chief Executive of the Electoral Commission for a term of one year, commencing 2 June 2009, Justice Minister Simon Power said today.

The one year term is because they are reviewing the agencies.

Mr Henry is a former senior public servant and more recently has worked as a management consultant. He was the Chief Executive of the Inland Revenue Department from 1988-1995, Commissioner of the Y2K Readiness Commission from 1998-2000, and Chief Electoral Officer from 2000-2006.

Henry was fearless as Chief Electoral Officer – he is the one who told Labour that their pledge card was an election advertisement and needed authorising, and that he also would recommend to the Electoral Commission that it be treated as an election expense.

Despite Labour being the Government of the Day and vigorous lobbying from Labour, he refused to back down in his interpretation and duly referred them to the Police.

I have no doubt he would be equally fearsome with a National Government.

In terms of expertise, a former Chief Electoral Officer can hardly be beaten.

I was at the farewell function last night for the retiring CEO of the Electoral Commission, Helena Catt. I was very pleased to be invited despite having helped take the Commission to court a couple of times

Dr Catt mentioned that a paper was due out today on how a text reminder on election day significantly increased vote turnout. The paper is here.

There were 15,662 who had texted the EEC requesting an enrolment pack.Some of them were sent a text message on election day reminding them to vote, and some were not.

The turnout rate of those who got a text message was 75.5% – a significant 4.7% higher than the 70.8% who did not get a text message.

The biggest increase in voting was in low population density electorates (rural), electorates with high Maori populations and amongst people enrolled in the last month – they had a greater than 10% difference

I was amused that a few people replied to the text message, and this was one response:

HEY ORANGE GUY WE HAVIN FLAT WARMING 2NYTE BRING THE ORANGE JUICE AND ALL YR FRIENDS.

Anyway the results are strong enough that I think the Government should seriously look at doing a mass text on election day to enrolled voters. This would mean the EEC would have to collect cellphone numbers, but that can be done with a small law change.

At 10 am I blogged on the candidate expenses and donations summary.

I noted Charles Chauvel spent $5,551 on Internet advertising and said “What did Charles spend $5,551 on?”

At 3.01 pm the Electoral Commission sends me a copy of his expense and donation return. Now that is what you cann great service!

The $5,551.13 all went on Charles’ website. It’s a nice website but that’s a fair bit of money for it. On ther other hand the regulated period was from 1 January 2008, so that cost may include all the updates with new material.

The Electoral Commission has published a post-election study of knowledge of MMP, and one stat is not pretty:

Only 52% of respondents correctly stated that the party vote is more important than the electorate vote in determining the numebr of MPs each party will get.  It was somewhat better pre-election at 67%.

The Electoral Commission has published the details of spending by registered third parties in 2009. From largest to smallest they are:

1. CTU $104,110
2. PSA $71,304
3. Free Speech Coalition $29,491
4. Dairy Workers Union $16,740
5. NZ Meat Workers Union $8,571
6. EPMU $5,690
7. Maritime Union $3,282
8. Vote for the Environment $1,296
9. NUPE $1,285
10. Health Cuts Hurt $293

So the total union was a bit over $200,000. And nine out of ten third parties that spent money were clearly left wing – in fact the FSC was the only expenditure from the right. So again when the left go on abour big money in politics, remember the left spent six times as much.

Some interesting details in the individual returns. The CTU spent $35,000 on 300,000 flyers (the real cost would have been all the paid union staff distributing them) and they spent just over $20,000 on their You Tube ads attacking Bill English and John Key. Also Labour approved $47,000 of their costs reminding us of how closely linked they are.

Seven unions donated money to the CTU for their campaign – the largest was the PPTA at $50,000.

Interesting the two unions that both spent over $30,000 had qualified audit reports in which they say they can not form an opinion as to whether the returns are correct. The EFA is such a bad confusing law, that the Auditors said they can not know if the law has been complied with. And this is no surprise – the Institute of Accountants warned of this before it was passed, and Labour and Greens ignored the advice.

The Dairy Workers Union appear to have misunderstood the donations return. It is meant to be for them to list what donations they received. Instead they have listed the donations they made – $10,000 to CTU, $12,000 to Labour and $3,000 to the Greens.

In May we will get to see the donations returns for the political parties.

The Electoral Commission has published their ultra-handy electoral compendium for the 2008 election, and has also placed the data online.

The facts booklet has 22 pages of info, and the stats has lots of useful stuff, including:

• Enrolments stats
• Turnout Stats
• Voting stats (did you know National won the 120th seat in the last three elections?)
• That United Future was just 504 votes off an extra seat in 2002, Greens 1,250 off another in 2005 and Labour just 39 votes off an extra in 2008
• Split Voting stats
• Candidate stats (160 list only cands)
• MPs stats (in last three elections a total of 59 MPs have lost their seats)
• Electorate stats (they have ranked them into quartiles for various parties)

You can spend hours in this stuff!

The Herald reports on the 2008 spending returns. I’ll come to that, but first an error they made:

No parties exceeded their caps, unlike 2005 when Labour got into trouble for its parliamentary-funded election year “pledge card” – a cost which was later deemed an illegal election expense and put it over its spending cap.

It was not “later” deemed an illegal election expense. The Chief Electoral Office warned Labour three times before the election that their pledge card was an election advertisement.

Anyway the 2008 returns are on the Elections website. Be warned some of them are huge as every ad has to be listed.

NZ First is listed as havign filed an incomplete return. What this probably means if there is no statutory declaration and/or an Auditor’s Certificate. In other words no-one will swear it is actually correct!

Considering their 2005, 2006 and 2007 returns were all found to be false, it might be no surprise they are finding it difficult to find someone to sign them off.

Two interesting decisions by the Electoral Commission.

The first is hilarious. It is about Richard Green pruning his hedge so it displays “Green”. Yes the EFA even covers hedges. Some quotes:

The hedge does not appear to contain a promoter statement, and there is no evidence that the publication of the hedge was authorised by the financial agent for the Green Party. Therefore if the hedge is an election advertisement then the failure to provide a promoter statement and to have authorisation in writing for that publication would appear to contravene sections 63(2) and 65(1).

Heh, imagine a hedge having to have a promoter statement.

Luckily for Mr Green, the Electoral Commission decided any breach was not wilful, and even if it was, not significant. Interestingly, they didn’t actually determine whether or not the hedge was an election advertisement or not!

Then we have the late disclosure of donations from the Family Party – as previously covered here:

The Family Party have been referred to the Police for possible prosecution. This may be seen as a bit unfair, as the Greens got off for a similiar offence. However that was in the early days of the EFA, and the Commission points to an explicit notice to political parties in May reminding them of the need to report donations that aggregate to more than $20,000 within ten days.

Whether the Police prosecute is another issue. To date the Police have not prosecuted for any offence referred to them.

You have to feel sorry for the Electoral Commission. Not only have they had to cope with the Electoral Finance Act, but today on One News we hear Energy Minister Gerry Brownlee was unhappy with them over the power outages in Auckland.

Did TVNZ possibly mean the Electricty Commision, not the Electoral Commision?

NBR reports that the Police are not prosecuting Jim Anderton for breaches of the Electoral Finance Act, despite a referral from the Electoral Commision. Naturally Jim has concluded that this means the Electoral Commission were wrong:

Progressive leader Jim Anderton has criticised the Electoral Commission for referring a complaint that he breached the Electoral Finance Act (EFA) to the police.

Mr Anderton said today that the police had written to him advising that there had been no breach of the EFA. …

Mr Anderton said the complaint was frivolous and a waste of police time.

He accused the commission of taking a cavalier attitude.

“The decision to refer these complaints just before the election, when even the most cursory examination should have shown no offence had been committed, showed poor judgement,” Mr Anderton said.

Actually the Electoral Commission set out a very detailed case as to why they beleived Anderton had breached the Act – he was using taxpayer resources to send out unauthorised material with the Progressives campaign slogan on it.

The fact the Police are not prosecuting is of no surprise. The history of the Police with electoral law enforcement is rather woeful.

Further to my blog this morning complaining the Police have been unable to make a decision on the most simple electoral complaints, despite having had the Electoral Commission refer them as far back as June. Well it gets even worse than that.

One of the complaints was made not under the Electoral Finance Act but the Broadcasting Act. This is in relation to the allegedly illegal election programme on NewstalkZB, where Shane Jones and Winston Peters advocated for their parties.

Now this is a breach of s70 of the Broadcasting Act and has a possible $100,000 fine. But it may be too late to prosecute. Why? The alleged offence happened in early June 2008. That is over six months ago. And the Broadcasting Act states it is a summary offence.

And if you turn to s14 of the Summary Procedures Act 1987, you find:

Except where some other period of limitation is provided by the Act creating the offence or by any other Act, every information for an offence (other than an offence which may be dealt with summarily under section 6 of this Act) shall be laid within 6 months from the time when the matter of the information arose.

It is one thing for the Police to decide not to prosecute. But yet another to have no prosecution occur, simly because they missed the deadline.

I hope there will be multi-partisan support for removing the prosecution of electoral offences from the Police. They obviously don’t want it, and would rather concentrate on other crimes. The challenge is how to reorganise the electoral agencies to allow for the different services of advice and enforcement.

The Herald reports today that the Police have rejected the NZ First complaint against the Director of the Serious Fraud Office. They were very upset that he told the truth to the Privileges Committee about the funding of the $40,000 Peters paid Clarkson. It showed that both Peters and Henry had given false evidence to the Privileges Committee, so no wonder they were upset.

But this got me thinking about the Police, and the election. The Electoral Commission has referred multiple alleged offences to the Police this year, and with one exception (the false donation returns from NZ First) it has not announced an outcome for any of them.

The earliest referral was on 27 June in relation to unauthorised banners in Tauranga. This was as simple a case as you can get. How is it the Police have not been able to reach a conclusion in six months?

There was also the Progressive adverts referred on 1 August, the EMA adverts on 26 August, the late Social Credit donations return on 4 Sep 2008, and a further Progressive ad on 18 Sep 2008.

It is difficult to not conclude that the Police just have no interest in enforcing electoral law (as they showed in 2005), when they can’t even make a decision within six months on an unauthorised billboard.

The Electoral Commission has found four items were illegal election advertisements, and has referred three of them to the Police for possible prosecution. The one that will get all the news is that Rodney Hide’s yellow jacket has been referred.

ACT told the Electoral Commission that Rodney rectified any problems by affixing an authorisation inside the jacket that can be shown to anyone who asks to see it, but this wasn’t deemed sufficient. So Rodney and his jacket may end up in the dock. That’s a shame as no doubt he’ll start weariing it again!

It does show of course how stupid the law is.

The Greens had some unauthorised fence signs in Palmerston North, but ruled the breach inconsequential.

National MP Nicky Wagner has been referred to the Police. It seems she distributed printouts of some powerpoint slides at a meeting and the final slide had tick Wagner and tick National. That made it an election advertisement. I think this is the first National breach of the law.

Finally a flyer for Roger Douglas put together by his local campaign team was not authorised by the ACT Party Secretary, so was also a breach of the EFA and has been referred to the Police.

I wonder if the law will be repealed before any prosecutions occur?

Just had another look at the Electoral Commission page of donations over $20,000 to political parties. By now any pre-election donations must have been declared. So how much did each party receive in large (over $20k) donations?

1. ACT $300,000 (Alan Gibbs $200K, John Boscawen $100k)
2. Greens $182,926 (various)
3. Labour $160,000 (Velas $100K, EPMU $60k)
4. NZ First $100,000 (Velas $60k)
5. National $60,000 (John Key $30k, Road Transport Trust $30k)

And almost every large donations is from an individual who is a known supporter. Well plus the Velas whose generosity to Labour was previously unknown.

But just remember these declarations the next time people go on about big money. National had the 5th largest amount of declared over $20k donations.

Of course this is not the full picture. National did receive a lot of money through trusts prior to 2008, but that is all history now. Also there are the anonymous donations through the Electoral Commission – but as it is a serious offence to inform a party you have donated that way, there can be no suspicion of favours for donations. Also in May next year we’ll see any donations over $10K and under $20K that were made.

The Electoral Commission has published further documents on New Zealand First, and they confirm that every single erturn they filed in the last three years was false. The 2005 and 2006 returns can not be prosecuuted simply because the time has expired.

The amended returns state the following amount of big donations:

• 2005 – $87,684.83
• 2006 – $67,083.33
• 2007 – $80,000.00

So that is 234,768.16 that never was declared.

So why was 2007 not prosecuted:

The Secretary explained that the omission of the $80,000 donation was as a result of a misinterpretation of the Act. Legal advice received indicated that the Spencer Trust was “a body of persons involved in the administration of the affairs of the party” and as such when donations were made to the Spencer Trust those equated to donations to New Zealand First and the payment of the money from the Trust to the Party did not amount to another donation.

So the defence is she followed legal advice. The legal advice was wrong. I bet you we can all guess where that advice came from. This was the same legal advice that Winston did not have to declare the Owen Glenn donation. Possibly the same legal advice who gave false evidence to the Privileges Committee?

Also interesting that their argument was that the Spencer Trust was an integral part of the Party. This contradicts Winston who claimed it was independent.

The Electoral Commission accepts that the Secretary had no intention to mis-state the facts in respect of the return of party donations. The Commission also considers that under the circumstances it was reasonable for the Secretary to rely on what she had been told by the Party and by the Auditor, who is a professional and also relied on legal advice, in respect of the classification of the donations in question.

This is quite clever. There is no liability for the professional advisors if they give wrong advice, but the party secretary is protected because she got their advice.

I wonder if the law should be changed to have the Electoral Commission appoint the auditors for a political party, rather than the party?

Finally they note:

The matters the Electoral Commission was required to consider are governed by sections 214F to 214L of the Electoral Act. Those provisions apply in respect of the obligations and actions of the Party Secretary only. As a result the Commission has considered, and this decision pertains to, the actions of the Party Secretary only.

I advocated in my submission on the Electoral Finance Act that parties themselves should be able to be prosecuted for incorrect returns etc. The law currently only allows individuals to be charged, and you get situations like this when people can escape liability by not holding the correct role.

At the end of the day the important thing is that the public now know NZ First received $235,000 of donations over three years though the Spencer Trust, and that Winston has personally benefited by a further $140,000+ of large donations. This is the info that they went to such great lengths to keep from us.