Kiwiblog

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.

The PM’s Office put a copy of the PM’s speech to the Labour Party Congress on YouTube. There was no authorisation statement so this was in breach of the Electoral Finance Act.

However they escape referral to the Police as the breach was not wilful. The Electoral Commission found that the breach was an oversight as the PMs Office only put them on You Tube to allow them to be embedded in the Labour Party website which was authorised.

UPDATE: Rodney may be in trouble over his yellow jacket:

Act leader Rodney Hide’s canary-yellow jacket has fallen foul of the Electoral Finance Act.

The Electoral Commission wrote to Mr Hide yesterday, saying that under the act the jacket might be an “election advertisement” and therefore required an authorising statement.

Mr Hide said the move showed the absurdity of the act and the Labour-led Government that passed it.

Absurd indeed.

One of the bizarre elements of the Electoral Finance Act is rather than abolishing anonymous donations, it routed them through the Electoral Commission allowing a party to receive $240,000 that way, with no individual donation bigger than $36,000.

The Commssion has updated its website with details of donations received and paid out:

In September it paid out $15,000, being three donations of $5,000 each to Progressives, National and Labour.

In October it has paid out $76,000 being $72,000 to National and $4,000 to Labour. So I would guess National had two $36,000 donations made as that is the maximum.

I was initially puzzled as to why someone would make a donation of $5,000 anonymously through the Electoral Commission. You see if they donated direct to the party their name would not be disclosed publicly unless it was over $10,000. I then thought of two possibilities:

1. They had already given $10,000 to the party directly and wanted to give additional money without disclosure. The EFA actually allows a total of $66,000 to be donated over three years to a party without disclosure – $10K a year and $36K through the Electoral Commission.
2. They genuinely want to be anonymous – even to the party officers and staff. If you donate $5k direct to a party your name is not published publicly but the party president, secretary and a couple of others will know. So if you want total anonymity then a $5k donation through the Electoral Commission makes sense.

The Electoral Commission has done three things in response to NZ First’s 2007 donations return:

1. It has found the party secretary did not break the law with the 2007 donations return, but is not releasing the full decision as it may compromise the police investigation. They EC point out carefully “The determination is in respect of the actions of the Party Secretary for New Zealand First only, as considered under Part 6 of the Electoral Act.” This suggests that others are under investigation by the Police.
2. It has published amended returns for 2007 showing $80,000 of donations from the Spencer Trust. At this stage amended returns for 2005 and 2006 have not been published or possibly even received.
3. It has published a letter from the NZ First Auditor, Nick Kosoof.

No (1) is not a big surprise. The party administrators tended to be kept ignorant of the Spencer Trust. Both the Party President and the Party Deputy Leader have said they were unaware the Spencer Trust even existed.  So I guess the Party Secretary was also unaware of it.

The letter from Kosoof is interesting. He says:

We were advised that the sums totally $80,000 paid to the Spencer Trust were paid not for the credit of that trust but for the credit of the NZ First Party, and were received by the Spencer Trust as an agent for the NZ First Party. As each of the component parts of that sum were from different entities and each was $10,000 or under, they did not require to be returned under the Electoral Act 1993.

This raises many questions:

1. Who advised Kosoof of this?
2. Did he have access to the Spencer Trust accounts to verify that each component part was under $10,000?
3. Did he seek any legal advice on the situation or just take the word of the organisation he audits?

I wonder if NZ First wll file amended returns for 2005 and 2006? I suspect they may choose not to, even though they have acknowledged the 2005 return was false. The EC doesn’t actually have the power to force them to do this.

David Benson-Pope will be happy – his complaint to the Electoral Commission against ACT has been upheld.

Up until 2005 Sir Robert Jones provided free office space to ACT for an out of parliament office. The value was around $20,000 a year.

ACT’s position was:

The Party Secretary acknowledges that the office space was provided “for an Out of Parliament office” used for the Wellington-based list MPs to carry out their constituency work and that the office staff and equipment were funded by Parliamentary Services out of the budget provided for the list MPs.

The Secretary states that the party did not use the office for campaigning or other party purposes, as the party obtained another office for those purposes.

The Secretary claims that the party did not benefit from the provision of the office space and
therefore did not need to declare it.

In a way this is really about whether a donation to a parliamentary section of a party counts as a donation to the party. The consequences of this ruling could be quite large, as any MP who gets a cheap rate for their out of parliament office may be covered by this.

The Commission ruled that the parliamentary section of a party is considered part of a party, and the free rent was a donation that should have been declared. The deadline for prosecutions has expired, luckily for ACT. They have asked ACT to file amended returns for the affected years.

Some will claim a moral equivalence with NZ First. That is nonsense. There is a reasonable argument (even though they lost the argument) about whether free OOP office space for MPs (which by definition should not be used for political or campaign activity) should be included as a party donation. There is no argument over receiving large sums of money directly and not declaring them.

This does not mean ACT can not be criticised for their decision. If I was in their shoes I would have pro-actively asked the Electoral Commission for a ruling on whether free office space for an MPs office constitutes a donation to the party itself. Erring on the side of caution is sensible when it comes to electoral law.

The Electoral Commission has saved me from becoming the most hated man in NZ, and found that the Tui billboards are not election advertisements – but only just!

I asked the EC to rule on the Tui billboards after reading their determination that the EMA ads against KiwiSaver were election advertisements because they can not take into account the intent of the ad – only the impact.

The interesting thing is how close a call they say it was:

As a result the Electoral Commission formed the view that the billboard in question sits just outside of what could reasonably be regarded as encouraging or persuading voters to vote or not to vote in a particular manner, and is therefore not an election advertisement for the purposes of the Electoral Finance Act.

They went out of their way to say the billboard sits “just outside” being an illegal election advertisement. I think it shows hiw far reaching the EFA is, even though it has stopped just short.

Also the EC seems to suggest that Tui escaped only because of their unique place in NZ society:

While there is no exemption for humour as such, because of the long-standing and unique
background of the Tui advertisement series, the Commission does not consider that the billboard in question is likely to have an abiding impact on the thinking of members of the public.

In other words this is not much of a precedent for other satire.

I am totally unsurprised by the outcome of the Serious Fraud Office inquiries into the Spencer Trust. And the outcome is in no way a clearance or an exoneration. What it says is laws have been broken, but not fraud laws.

NZ First’s failure to obey the electoral laws of New Zealand is what made the investigation occur. Because the public facts were that Bob Jones had stated he had made a $25,000 donation intended for NZ First, through the Spencer Trust, and the NZ First Party had filed a donations return saying it had not received any donations in 2005 of over $10,000. To quote the SFO:

There were two competing explanations for how this could be.

1. The Spencer Trust never passed the money onto NZ First, which would be possibly fraudalant
2. The Spencer Trust did pass the money onto NZ First, and NZ First filed a false electoral donations return

No 2 was always far more likely. And thanks to the SFO investigation we now know this is true. In fact we know that NZ First has filed a series of false returns, as has Winston Peters personally, and Peters has lied on multiple occassions about these returns, including giving false information to the Privileges Committee.

This is no case of an accidential omission on a return, due to Mrs Muggins the branch secretary. This was a strategy signed off by the Leader. Let us look at the multiple false returns and statements:

1. A false donations return for 2005
2. A false election expenses return for 2005
3. A false donations return for 2007
4. A false return on the Register of Pecuniary Interests for 2006 (Payment of debt to Bob Clarkson for Peters)
5. A false return on the Register of Pecuniary Interest for 2006 (Payment of debt to David Carter for Peters)

Now these are not just mistakes or errors. Only because of the SFO investigation has this come to light. And it gets even worse. Most semi-honest people would, once they had been caught out, would at least reveal all. But no Peters does not.

He was instructed by the House of Representatives to file amended pecuniary interest returns for 2005, 2006 and 2007. And all he did was amend them to include the two donations that had already been publicly forced out (Owen Glenn and Spencer Trust for Clarkson) but he didn’t declare the $13,640.37 the Spencer Trust paid on his benhalf to David Carter in 2006. These are the actions (assuming Weekend Herald is correct) of a pathological liar, not a cleared man.

And on that issue, it sounds like Eye to Eye at 11.30 am on Sunday will be interesting watching as Matthew Hooton is on the panel with Peters as the guest. Quoting Roar Prawn:

TVNZ sources say that Willie Jackson’s Eye to Eye tomorrow will be one of the most fiery TV debating shows ever seen in New Zealand.

Winston fronted up to the Green Room, last night to tape the show that airs on 11.30 on Sunday on TVNZ, thinking he would be up for a cosy chat with his mates Barry Soper and Chris Trotter.

He was high on hearing that the SFO had dropped criminal charges, but he was less than impressed when he realised that Jackson had decided to replace Trotter with Matthew Hooton.

Hooton won’t talk about the encounter but BustedBlonde’s media sources say that Winston tried to bluff his way out of appearing with Hooton, . saying there was no way he was going to be with someone who called him a liar.

Before they even got on air, we understand Hooton then called him a liar, a crook and a lying c***t straight to his face.

Anyway, things didn’t get much better on air, and the air was so blue Jackson had to stop the pair at one stage and re- record the show.

Our sources say that Winston always wins these debates on points but Hooton had him on the ropes more than once refusing to kowtow to the liar (our words)

Our sources say it was one of the most brutal encounters they had ever witnessed on NZ television.

That is very typical of the mischievous Willie Jackson – invite Peters on and then have Hooton on also. Can’t wait to see it.

The Electoral Commission has referred Labour MP Shane Jones to the Police over his urging people to vote Labour while a replacement talkback host for an hour.

Yes even talkback hosts can not say what they think on air under the Electoral Finance Act.

A complaint (both laid by John Boscawen) against Winston Peters was not upheld, despite Peters also advocating voting for NZ First.

The difference is Peters did so in response to a question, while Jones advocated unprompted.

The Commission’s reasoning is sound and correct in my opinion. It does show how stupid the law is though when it comes down to this.

Note this ruling is a precedent for all radio staff and talkback hosts. The facts Peters and Jones were MPs was not the issue. If you say on air unprompted whichparty you think should or should not be supported, then you may be facing Police action also – unless your broadcaster clearly gives you authority to do so for editorial purposes. Read the full ruling.

UPDATE: NewstalkZB is also facing a fine of up to $200,000 for breaching the Broadcasting Act, as the talkback may constitute an illegal election broadcast.

The Electoral Commision has released four more decisons – all quite interesting.

1. Display of anti-national banners by Clinton Smith was complained about by Cameron Slater. The Commission found that the banner and associated leaflets were election advertisements under the EFA. Smith claimed to have made a verbal promoter statement of authorisation. The Commission rejected this as being adequate and said tangible items can not have merely verbal authorisation statements. Therefore they found the items contravened s63(2) of the Electoral Finance Act. However they will not ask the Police to investigate Smith for an illegal practice as they found his breach was not wilful as he thought what he had done was necessary. And if does not constitute an illegal practice unless done wilfully.
2. A Pete Hodgson fundraising letter for Labour. This was found to be an election advertisement in breach of s63(2) of not having an authorisation statement and 65(1) of not having been formally approved by the Labour Party. However once again they found the breach was not wilful and again no referral to the Police as it is not an illegal practice unless done willfuly.
3. National MP Eric Roy’s advertisments in the Southland Express were complained about by Labour MP Lesley Soper. The EC made said “The Electoral Commission believes it is essential to democratic elections that parties can inform the public of the policies which will be implemented if elected and that, particularly in light of New Zealand Bill of Rights Act considerations, it would not be reasonable to regard mere statements of policy as election advertisements and subject to the restraints of the Electoral Finance Act.” They also said “Therefore the Commission is of the view that items which are accounts or reasoned criticisms of policy, or accounts or reasoned criticisms of actions or inactions, generally are not “reasonably” regarded as election advertisements as they are essential to informed democratic elections.“So what can’t you say? “The Electoral Commission considers that accompanying identification of the proponents of such items does not of itself convert the items into election advertisements, but disproportionate display of photographs, names or logos could do so. Other matters that might bring such items within the definition of an election advertisement include the addition of persuasive content which lack an information base such as party slogans, self promotion or unreasoned criticism of opponents, and exhortations to vote in a particular manner.” They cocnluded that Eric Roy’s advertisements were not election advertisements under the EFA.
4. National MP Chris Auchinvole’s website was complained about by Oliver Woods. With similiar reasoning to above, the Electoral Commission found the website was not an election advertisement. So National continues to be one of the few parties to have never broken the new law.

In both the first two cases, illegal advertisements were published and the law was broken. But the finding of a lack of intent means no liability for the two individuals concerned.

Also of interest to some may be the news that as Kotahitanga Te Manamotu Hake Tiriti o Waitangi, the New Zealand Liberals, and the South Island Party all failed to register for the election, their $30,000 of broadcasting allocations was redistributed to all the smaller parties

Unless a new party pops up to register before Thursday, then there are 21 parties contesting the election, in terms of the party vote. This assumes they will all file a party list, which may not happen.

In 1996 there were 22 registered parties, with 21 of them contesting the election. In 1999 25 registered parties and 22 of them contested the election.

2002 saw just 15 parties registered, and 14 competing. And last time in 2005 all 19 parties made it onto the ballot.

The parties in alphabetical order are

1. ACT New Zealand
2. Aotearoa Legalise Cannabis Party
3. Direct Democracy Party
4. Jim Anderton’s Progressive
5. Libertarianz
6. Māori Party
7. New World Order
8. New Zealand First Party
9. New Zealand Labour Party
10. New Zealand Pacific Party
11. RAM – Residents Action Movement
12. The Alliance
13. The Bill and Ben Party
14. The Family Party
15. The Greens, The Green Party of Aotearoa/New Zealand
16. The Kiwi Party
17. The New Zealand Democratic Party for Social Credit
18. The New Zealand National Party
19. The Republic of New Zealand Party
20. UNITED FUTURE NEW ZEALAND
21. Workers Party of New Zealand

The ELectoral Commission has just published its annual report. This is its official report to Parliament and signed off by the Commissioners.

Some extracts:

The Electoral Finance Act 2007 (supported by amendments to the Broadcasting and Electoral Acts)
made a number of significant changes to the compliance requirements on political parties and
introduced compliance requirements for third parties beyond authorisation statements.

These changes have presented implementation and administrative challenges to all involved. The meanings of significant sections of the legislation are obscure. This situation has required – and will require – constant legal advice to assist with interpretation.

The commission is not confident that it will be able to reach informed positions on the interpretation of some provisions within the election period, and notes that the situation is exacerbated by the legal reality that it cannot finally determine questions of whether, for instance, an item is an election advertisement.

It is worth remembering that the Commission CEO actually warned the Government about this, before they passed the law.

The new legislation was enacted on 19 December 2007 with commencement the following day, and the regulated period commencing on 1 January 2008. This meant implementation planning and process development had to begin while the shape of the final legislation was unclear. The significant changes to the Bill at select committee, and a lack of time between enactment and commencement also meant that interpretive and practical implications could not be worked through in advance of the law being in force. A lack of broad political consensus through the passage of the bill and since has resulted in difficult law delivered into a litigious environment.

In other words the law change was left too late (Labour delyed it for months while it secretly negotiatedprovisions of it), the changes at select committee needed more time to consider and it was done without even an attempt at political consensus, hence shattering the bipartisan approach to it in the past.

Similarly, parties, candidates and third parties (listed or not) have had to come to terms with the implications of the new legislation also. It is clear that having uncertainty remaining within the regulated period has had a chilling effect on the extent and type of participation in political and campaign activity.

This is what Dr Catt said to a seminar some time ago, but it has more significance when included in the official annual report to Parliament, signed off by the various Judges and Secretary of Justice who make up the Commission along with Dr Catt.

If Labour First are re-elected they will not only keep the Electoral Finance Act, but they will change it to make their taxpayer funded advertising exempt from it.

Taito Phillip Field explains why he voted to censure Peters in the Herald.

Mr Peters has claimed the privileges committee was biased and hit out at the Maori Party for betraying him and at Mr Field, saying theMangere MP “did not understand loyalty”.

This is loyalty, as practised in Siciliy I suspect?

Mr Field acknowledged Mr Peters had supported him. “I have a lot of time for Winston and I am supportive of him. I’ve always considered Winston a friend, but I had to make an honest decision which had respect for the privileges committee process.”

Winston thinks it is all about him, but for many MPs it was about recognising the fact the Privileges Committee heard all the evidence, and reached fair conclusions.

In the same report:

Meanwhile a complaint to the Advertising Standards Authority about a Tui billboard saying: “When Winston says no, he means no. Yeah right.” has failed.

The complainant, N. Keesing, said it was “defamatory and racially discriminating towards Winston Peters”.

The authority ruled that it would be seen in a humorous light and did not meet the “threshold to effect a breach of the code of ethics”.

How is the Tui billboard racially discriminating??

It may however be an election advertisement. I have asked the Electoral Commission to rule on whether or not it is.

Dear me. Jim Anderton and his party have been referred to the Police for a second time by the Electoral Commission. This maintains the perfect record of parties that voted for the EFA breaking it, and parties that voted against it not yet having fallen afoul of it.

Jim did not include a promoter authorisation statement (again) on his e-newsletter. He offerd an impressive range of defences against breaking the law:

1. Parliamentary Privilege – “He suggests that the issue is governed by parliamentary privilege and that the Electoral Finance Act makes no intrusion on this process”
2. Just press statements – “Mr Anderton asserts that the material is not an election advertisement because it contains press statements and statements of policy.” Jim doesn’t realised he voted for a law that covers press statements also.
3. Jim is an Editor – “He further asserts that if the content is found to fall within the general definition of an election advertisement in section 5(1) of the Act that the material falls within two exemptions: section 5(2)(b) editorial material in a periodical”
4. Jim is a blogger – “and section 5(2)(g) personal views published on the internet.”

The Electoral Commission provide some useful reasoning in their decision, relating to what is an advertisement:

The Electoral Commission accepts that accounts or reasoned criticisms of policy and accounts or reasoned criticisms of actions or inactions generally are not “reasonably” regarded as election advertisements, as such categories are essential to informed democratic elections. The Commission considers material which essentially is mere exaltation to vote in a particular manner or self promotion, or abuse, or slogans, generally falls into a different category. Such material is persuasion without an information basis. While commonplace, it is not essential in the same way. Material in this latter category properly falls within election advertising constraints.

Jim’s problem is he abused John Key and repeated the Progressive’s campaign slogan. The abuse is deemed a marginal call and he escapes on that, but gets sunk by using their campaign slogan.

While context and circumstances will be important, passages which amount to election advertising are not saved simply because they occur within a wider range of material which is not election advertising.

This has always been the case. If part of a publication is an advertisement, the whole publication is.

The Commission point out the editorial exemption for a periodical is only for a “newspaper, magazine, or trade or professional journal” so MPs e-newsletters do not qualify.

As for parliamentary privilege:

The Commission has accepted that proceedings within the House are protected, despite the Act, by Article 9 of the Bill of Rights. It also accepts that parliamentary privilege can extend more widely. However, the Commission does not accept parliamentary privilege prevails over the Act so as to exempt such communications between MPs and the public from constraints on election advertising. If such an important and wide exception had been intended, it is likely that an express exclusion would have been included in section 5 (2) as is the case with certain other matters.

The Commission found overall that it was an election advertisement, that Jim Anderton was the promoter of it, and that in their opinion Anderton broke the law so they have referred it to the Police.

I suggest all MPs and parties should read the decision in full. It is one of the more detailed decisions they have published.

The NZ Herald comments on how the Electoral Finance Act has taken the fire out of the election:

This month, the head of the Electoral Commission confirmed what had already become apparent in the run-up to polling day on November 8. The Electoral Finance Act had had, said Dr Helena Catt, a “chilling effect on the extent and type of participation in political and campaign activity”. Her comment acknowledged the dearth of activity normally present during election campaigns as interest groups vigorously put their points of view.

Some will say this was always the intention – to make it harder for people to criticise the Government.

Understandably, the association has reacted strongly, saying it will likely legally challenge the commission’s verdict. “The decision … says, in effect, it is illegal to promote any views that oppose those of the government or an MP such as Mr Mallard in an election year,” it said.

A happy coincidence for Labour!

The real culprit here, however, is not the commission but the wording of the act, which probably left it with no choice. Not for no reason is Dr Catt now lambasting a “difficult law”, significant parts of which are “obscure” and hard to interpret. Not for no reason is she now using exactly the same language that critics, such as the Herald, were using as the legislation was rushed through Parliament without reflection or consensus.

And Dr Catt herself warned the law was unclear before it was passed. The three parties that forced it through have no defence.

The NZ Herald reports on how Labour authorised and may have to include the cost of two CTU ads which promote Labour and attack National.

Labour, and Labour candidates, should be very careful about accounting for union activity on their behalf. Such as this one below:

Here we have a Service and Food Workers Union car (and presumably staff) helping erect Labour Party hoardings in Rimutaka.

Gooner at No Minister has a similar story, sighting an EPMU vehicle being used in hoardings in Northcote.

Labour seem so short of volunteers that they can only get their hoardings up with union staff and vehicles.

Will the unions declare the cost of their vehicles and staff as a donation to Labour? Will Labour include the costs of said staff and vehicles in their expense declarations?

If union staff were doing this in their own time as volunteers, there would be no question of this being an expense. But by using union cars, and doing it during work time, I think there is a reasonable case that it becomes corporate assistance and a market rate should be calculated for what the car and manpower would cost.

Keep the photos flowing and mark down locations, dates and times. They may become evidence!