Kiwiblog

The Herald reports that the repeal of the Electoral Finance Act may be unanimous. Only the Greens have to decide on whether they will support it.

It would be most appropriate for it to be repealed by 122 votes to zero. A symbolic burial.

Will the Police manage to make decisions on outstanding cases before the law is repealed?

The introduction of the repeal bill is set to be tomorrow. And it should be gone some stage during next week.

It has been suggested that there should be some drinks organised to celebrate the repeal. That is a fine idea, and we may try and organise something in Wellington and Auckland around the time of the third and final reading of the repeal bill.

Despite supporting the Electoral Finance Act at the time, the PSA has now come out and said it supports its repeal. Better late than never.

But of course, there is a sting. They want taxpayers to fund political party campaigns, rather than members and supporters.

It is silly to keep pushing for taxpayer funding of political parties, because all the parties have such a huge conflict of interest on this topic. Putting aside the argument for and against, it would be improper for parties to vote themselves money without the voters approving it. So if you want state funding of political parties, then either get the public to vote for it in a referendum, or have political parties make an explicit manifesto promise that they will introduce it, so if those parties win they have a mandate to do so.

What should not happen is political parties voting themselves money with no mandate from the public.

The Herald reports that the Electoral Finance Act will be repealed by the end of next week. Thank God.

The main focus after that will be moving forward on replacement legislation, as I blogged about last week.Anyway the Herald explains:

But the Government will then embark on a cross-party consultation process to rewrite the electoral law.

It has already abandoned the review of the act that was to have been headed by Otago University Associate Professor Andrew Geddis.

Justice Minister Simon Power will take the repeal bill, the Electoral Amendment Bill, through all stages.

He said the plan involved all political parties in consultation.

“We will be taking the Leader of the Opposition [Phil Goff] up on his offer.”

Shortly after becoming Labour leader Mr Goff said Labour had made a mistake in passing the Electoral Finance Act without wider political consensus.

Mr Power said his aim was to have an “enduring legislative framework” for electoral law towards the fourth quarter of next year.

Yeah that is when it needs to be settled by.

Asked how the consultation would take place, he said he would be leading the discussion with each political party.

They would have input into an issues paper that would then be open to public and political submissions.

Totally different to the EFA, when no-one at all (except Winston and the Greens) had any input into the law until the bill was introduced. I’m very pleased to see a commitment to allowing the public (not just parties) to respond to an issues paper, rather than only to have a select committee submission.

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.

Last week Radio NZ reported:

The ODT looks at the issue of bad laws:

Parliament passed some poorly-drafted law during the term of the Clark Government, notably the Electoral Finance Act 2007, a most controversial set of laws widely condemned across the legal and quasi-legal community.

The Electoral Commission noted that it had had a “chilling effect” on political participation, but even before it was passed into law the Law Society and the Human Rights Commission had condemned it.

But then we had the example of a bad practice being retrospectively tidied up to legitimise the original activity, in the Appropriation (Continuation of Interim Meaning of Funding for Parliamentary Purposes) Act, which legally permitted political parties to continue to spend our money in the election campaign for purposes the Auditor-general had earlier determined were illegal.

Of course the two laws, were designed to work together. One was designed to silence critics of the Government while the other was designed to allow the Government to use taxpayer money for its own election campaign.

The NZ Herald counts up the editorials this year.

There were nine editorials backing decisions of the Labour Government, and 18 criticising it. National fared little better with 19 editorials criticising it, and 11 supporting it (five since the election).

14 editorials were on the credit crisis, 10 on the Electoral Finance Act and 10 on Winston Peters. The problems around the last two have been solved anyway

Poneke is in Brisbane and has discovered it has the buzz of prosperity:

On the surface, the prosperity can be seen in the world-class infrastructure of roads and electric rail lines that Auckland in particular has not been able to achieve despite decades of talk; the very high standard of housing, commercial buildings and public facilities; the wages that really are stunningly higher than at home; the many job vacancies in the papers even on the Saturday after Boxing Day. Australia has not had a single quarter of negative growth this year while we have had three (though the Aussies fret about it and fear recession might still happen). I could go on.

MacDoctor shares some first hand experience of emergency clinics:

An article in the Weekend Herald (not yet online) entitled “High cost stopping Kiwis visiting the doctor” tells us that over two thirds of New Zealanders over 20 have avoided visiting a doctor because of the cost. I didn’t need any research to tell me this is true, because these people pitch up to emergency departments throughout the country with the line, “I couldn’t afford to go to my GP”  or it’s alternative “I owe my GP too much money”. …

I view these two excuses with a great deal of cynicism. Many who use these lines are drunk or have nicotine stains on their fingers (or both). They drive up in expensive cars and sport MP3 players (many are genuine iPods). They typically arrive not long after the GPs have all closed for the evening, or over the weekend. These are the “milkers of the system”  - They know how to work the health system to their advantage and they use Emergency Departments like a GP clinic. …

I suspect most of the two thirds of New Zealanders who said that they do not go to a doctor because of cost, are really saying that they would rather spend their time and money on something other than their health. It has nothing to to with lack of access and much to do with lack of interest. Until we, as a society, start to see that health is important and worthy of investment, this problem will not go away, regardless of the amount of money governments may throw at it.

Hear hear. I think all bar the very poorest should pay something towards their healthcare.

Bernard Hickey recommends a Kim Hill interview with JJ Joseph – a man who used to beat his wife. It’s a very moving interview that shows people can turn their lives about.

And finally Lynn Prentice at The Standard manages to link Bernie Madoff’s ponzi scheme to National’s planned repeal of the EFA. The hilarious part is:

based on recent experience of their autocratic, arrogant, and undemocratic behavior in the house, we will probably see some opaque, badly written, and badly thought through legislation pushed through under urgency.

What does he call the EFA if not badly written and badly thought through? And he ignores of course that unlike Labour, National has said it will consult all parties over the replacement legislation. It was Labour that tried to use bipartisan electoral law to screw over its enemies.

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?

The Herald profiles the new Attorney-General Christopher Finlayson:

“I’ve always thought it was a really interesting job. As I’ve got involved in law more and more, you see that the poor old Attorney-General is the most-sued person in the realm and you see the sort of responsibilities he or she has.

“It’s an ancient office and it has huge responsibilities. I regard it as, frankly, the highlight of my career to get the job.”

Chris will be a very popular choice within the legal fraternity. He is or was a member of the High Court’s Rules Committee and has appeared before the Privy Council close to a dozen times.

An advocate for constitutional convention, Mr Finlayson says he has a “pragmatic rather than an emotional view” on republicanism. His own view is that “the time will come” for New Zealand, especially given Australia’s move in that direction under the Rudd Government.

“I’m very loyal to the current monarch but I’d be in the camp that says on the demise of the Queen there will be a number of countries in the Commonwealth that will be reviewing their constitutional arrangements and that’s probably a good thing. If so, it won’t be an anti-British thing. It’s just New Zealand’s evolution as a country.”

Sounds sensible.

Mr Finlayson is also likely to be involved in any review of electoral finance laws after his party repeals the Electoral Finance Act, although the exact plans are “something the Cabinet will have to look at”.

“What I really disliked about that act was this notion of third parties, that the public and representatives of the public were some kind of interlopers into the political game which was really for the politicians.

“I found that profoundly offensive. We are the servants. It’s the public’s electoral system.”

Absolutely. Labour and its allies tried to hijack it for their own gain.

It was also “atrociously drafted”. For the law reform fanatic who has worked for 30 years to become the Attorney-General, that is perhaps its worst sin of all.

Is there a word beyond atricious?

Toad from the Greens has an insightful piece as to why the centre-left lost power:

1. The Taito Phillip Field Affair Allegations of misconduct against Field had been simmering since just before the 2005 election. Instead of implementing a proper investigation with the teeth to interview witnesses under oath, Clark implemented an Claytons inquiry that was widely perceived as a whitewash designed to clear Field. Then despite further very serious allegations, Field was retained in the Labour Caucus right through to February 2007, creating a perception of tolerance of impropriety and possible corruption.
   
   Dead right. It was a disgrace, and even after the Ingram report they defended Field with Cullen saying he was just working harder for his constituents than National MPs did. Richard Prebble showed the correct way to respond to allegations of corruption around an MP – Helen Clark did the opposite.
2. The pledge card Labour’s handling of the pledge card and the Auditor-General’s report was appalling. The should have simply admitted “we got it wrong, and we’ll pay the money back” (as the Greens did). Instead, they allowed the pledge card affair to drag on interminably, and were subjected to daily allegations in Parliament of corruption. They hadn’t actually done anthing that most other political parties had done, but their reluctance to own up to their mistake and put it right undermined public confidence in them as a Government.

   They only conceded to pay the money back after they had taken all the flak for resisting. And the attacks on the Auditor-General were disgraceful.

3. David Benson-Pope Much like Taito Phillip Field actually, although the allegations were not so serious. The perception was created, through Clark’s continued tolerance of Benson-Pope through the “tennis balls affair” in which he had quite clearly been economical with the truth. He was finally dispatched in July 2007 after allegations of him lying to Parliament over matters relating to the appointment of a Communications Manager in the Ministry for the Environment. Clark said at the time, “The way in which certain issues have been handled this week has led to a loss of credibility and on that basis I have accepted Mr Benson-Pope’s offer to stand aside”. Pity for her that she didn’t realise he had lost credibility much earlier.

   Benson-Pope clearly lied about the tennis ball incident, with 11 or so pupils recalling it. And the issue was not whether or not he was a perfect teacher – it was that he called his former pupils liars and denied an incidents. He created all the problems for himself by the way he went on the attack.
   
   

4. The Electoral Finance Act This was handled by Labour in the most appalling way. The original Bill was so poorly drafted that Justice Minister Mark Burton deserved the sack for allowing a Bill that was such a shambles to come before Parliament. He was later quietly stood down, but by that time the damage had been done. Labour railroaded the Bill through Parliament, refusing to consider very pertinent submissions from organisations such as the Human Rights Commission or suggestions from the Green Party who were left with a “take it or leave it” option. This allowed the right to create the perception of the Electoral Finance Bill, and consequently of Labour, being undemocratic – a task which the NZ Herald took up with great gusto.

   Here I will have a go at Toad. The bloody Greens voted for the EFA, and they voted against many good amendments that would have made it a lot better. They sacrificed any moral high ground on electoral issues with their shameful kowtowing to Labour. If the Greens had the backbone at the beginning to say we won’t vote for this at first reading unless you consult with all parties, then the EFA would never have happened. I’m actually getting sick of how many people on the left are now decrying the EFA, when they never spoke up at the time.

   And while the final EFA was bad enough, I agree Mark Burton should have been shot for letting the original EFB through – that was the most draconian law I have ever seen with statutory declaraions needed to send an e-mail to a mate on a topical issue.
   

5. Winston Peters Need I say more. Clark stood by Peters as allegation after allegation of impropriety and, in the last few weeks, even corruption emerged against Peters. In her first and second terms he would have been promptly dispatched, at least temporarily, for allegations of far less substance, but her continued tolerance of him as a Minister allowed her and her government to be tarred with the same brush as Peters.

   Here at least the Greens can take a bow, and did put some heat on Clark. Clark’s legacy will always be tained by her disgraceful defence of Peters, and her total lack of concern with the evidence from the Serious Fraud Office and the Muerant papers about possible policies for cash.

NZPA reports:

New Opposition leader Phil Goff says it was a mistake to ram through the controversial Electoral Finance Act without widespread support and Labour would like to take part in a review. …

Mr Goff today said Labour would like to contribute to a review of the Act and National should seek consensus support for changes.

He acknowledged Labour had made mistakes.

“I don’t think the way that the Electoral Finance Act was passed or necessarily its specific detail was as good as it could have been,” he said on Radio New Zealand.

“I think we do need to look at that again. I think we need to look at that in a way that involves all parties.

“Any matter that’s constitutional or electoral we should be seeking consensus for. We didn’t have that consensus.”

This is basically final vindication for those of us who campaigned against the Electoral Finance Act. It would have been nicer to have them admit this before being booted out of office, but better late than never.

National offered to work with Labour in 2006 on a bipartisan basis to electoral laws, and Labour spurned it. In fact they came up with the most partisan self serving law change we have seen. However National needs to put aside any anger from that and let Labour into the tent on future changes. That is not to say ultimately decisions may be made by majority vote, but there has to be a good faith no surprises transparent process around writing the replacement to the EFA (which should be repealed immediately).

Constitutional acts such as the Electoral Act are too important to be a bauble of office or spoil of war. That is why National has to act in such a way to restore confidence in electoral law making, and not take revenge by locking Labour out of the process.

However, I believe you get one lifeline only. If some future Labour Government ever tries to ram through electoral law changes without a mandate or consultation, then they could never be trusted again. You would have permament warfare over the Electoral Act.

But for now congratulations to Phil Goff for admitting Labour were wrong for acting the way they did. It is a good start to his leadership.

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.

Claire Trevett in the NZ Herald has some examples of what the Electoral Commission has called the “chilling effect” of the Electoral Finance Act”

• Martin Taylor, chief executive of HealthCare Providers, said the lack of clarity meant he had to pull out of running his main election ads.
• Family First’s Bob McCroskrie faced the same problem and said he was being careful in case ads he did not believe were election advertising were later found to be so. His group had to shelve an initial plan for a pamphlet for every household because the cost was twice that of the $120,000 spending cap.
• There are no (as third parties) business advocacy groups, no Maori groups, and major lobby groups such as Federated Farmers, Grey Power and the Sensible Sentencing Trust have steered clear of the new regime, opting for more muted campaigns on “issues”.
• The Cycling Advocates’ Network has a website and email-based campaign, including posters for download urging people to “make your vote a vote for cycling”. Spokesman Stephen McKernon said it would add an authorising statement to its website and change some of its content after the Electoral Commission told him political parties would have to give written approval of claims they were ‘pro-cycling’.
• The Employers and Manufacturers Association was referred to the police for an advertisement opposing a law change to stop employers giving more pay in their pay packets to non-KiwiSaver members.
• “In newspapers, there is next to no interest-group advertisements and usually this is their one chance to get their say in. I think it’s an enormously dangerous development.”

Remember if the Labour-NZ First-Green axis gets re-elected, then not only will they retain the Electoral Finance Act – they will make it worse. They will keep all the restrictions on people’s ability to campaign against parties and candidates, but make it much easier for parties to use taxpayer funding to drown out their opponents.

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.

Matthew Hooton quotes Andrew Geddis on the info kits, with Andrew saying that they are not election advertisements as they are orange not red and don’t mention Labour.

Hooton points out though that Phil Goff, unlike his colleagues, has described himself as the “Labour MP for Mt Roskill” on the cover of his info kit.

This raises the possibility that for Phil Goff (but not other MPs) they will be counted as an election advertisement and hence an election expense. And if he has already spent more than $16,000 then he may have broken his spending limit. If that is the case he could lose his seat.

So if Phil Goff wins Mt Roskill, I am sure lawyers will be looking very closely at his election return.

And I wonder why Goff stuck Labour on his cover, when it seems most of his colleagues did not?

A while ago we realised we had a bit of money left over in the Free Speech Coalition coffers, plus a bit more had come in during the year, and we are morally obliged to spend it before the election.

The hypocrisy of Labour and NZ First voting for the Electoral Finance Act on the grounds of transparency around donations, and then having NZ First revealed as having filed false donation returns is too much to ignore. And Helen keeping Winston in the baubles of office despite the Privileges Committee finding that he lied about the $100,000 Owen Glenn donation shows that Helen’s rhetoric around the Electoral Finance Act is as false as Winston’s rhetoric.

So using the very fine creative talents of Mr Ansell and others, we took what had just been a blog billboard, tidied it up, and turned it into a real life one.

And there it is proudly on Ponsonby Road.

There will be one going up in Wellington also, and we have a slightly different one going up in Tauranga which we think will be popular! Stay tuned.

The Court of Appeal is hearing today an appeal in the case John Boscawen has brought against the Attorney-General over whether the Electoral Finance Act is consistent with the Bill of Rights Act.

I blogged back in June the High Court decisions:

As I said earlier the protection of parliamentary privilege saw the challenge to the Electoral Finance Bill dismissed. The similar case against the Electoral Finance Act also was dismissed on the grounds it was asking the Court for an abstract ruling (ie just asking whether the EFA breached the Bill of Rights Act).

The hearing today is before Appeal Justices Glazebrook, O’Regan and Arnold. Originally it was to be heard by just one permament Court of Appeal Judge and two High Court Judges, but now all three Judges hearing it are permament members of the Court of Appeal – possibly an inidcation of the importance of the case?

A copy of the appellants submission is here: boscawen-submissions-ca.

What was sought:

In the High Court proceeding, the appellants sought declarations that provisions in the Electoral Finance Act 2007 (“EF Act”) were inconsistent with fundamental civil and political rights affirmed by the Bill of Rights Act. As the offending provisions in the EF Act germinated from the original Electoral Finance Bill (“EF Bill”), the appellants also claimed that the Attorney General should have drawn them to the attention of the House of Representatives during the legislative process. The appellants sought declarations that the Attorney breached his statutory duty under s.7 by failing to do so.

And what happened in the High Court:

Clifford J in the High Court granted the Crown’s application and struck out the ASOC in its entirety. Clifford J expressed reluctance to make declarations of inconsistency, particularly on an abstract basis, without clear jurisdictional guidance from this Court1. He also followed the 1994 High Court decision of Mangawaro Enterprises Limited v Attorney General (“Mangawaro”)2, and obiter dicta comments from McGrath J in Awatere Huata v Prebble (“Awatere Huata”)3 and found the Attorney General’s exercise of statutory power under s.7 to be non-justiciable.

Most of the argument will be around whether the Court can make a declaration of inconsistency regarding a law and the Bill of Rights Act. To date no court has done so, but Boscawen cites previous judgements that have alluded to the desirability of doing so. It will be an interesting outcome either way.

There has finally been some attention paid by the media to Labour’s “information kit for the over 60s” which their MPs are posting and handing out in the tens of thousands.

Matthew Hooton has blogged on this several times in recent days.

This is a continuation of Labour’s 2005 pledge card strategy where Labour tries to get the taxpayer to pay for material it can use during the election campaign – and also tries to not have it count towards as part of their $2.4 million spending limit.

There are two questions involved:

1. Is it appropriate and legal for the info kit to be paid for by The Parliamentary Service (taxpayers) for distribution during the election campaign?
2. Does the info kit constitute an election advertisement under the Electoral Finance Act?

The answer to (1) is that it is legal – but, and this is important, only because Labour, NZ First and Greens rammed through a law change to over-turn the Auditor General’s interpretation of the previous law.

The Auditor-General could well have found, if the law had not changed, that this info kit was electioneering – especially as it was produced and distributed so close to an election. If it was a genuine info kit it would have been produced and distributed last year or even earlier this year.

But Labour First and the Greens changed the law (without even giving the public a chance to submit on the law change) so that only material which explicitly sought support for a party (as oppossed to implicitly) is covered. Under this law change Labour’s 2005 pledge card could be legally taxpayer funded again.

My solution to this rorting of the system is simple – ban taxpayer funding of such advertising in the last 90 days. If it was a genuine info kit then they can produce and distribute it when there is not an election a few days away.

This is all part of Labour’s strategy to hold its most marginal seats. Part One was the Electoral Finance Act to silence new candidates by extending the $20,000 limit in the regulated period from 90 days to all of election year. This is a limit of around 5c/voter/month. Part Two was changing the law so incumbent MPs could use taxpayer funded advertising during the election campaign. It is all designed to keep incumbent MPs in their jobs.

Considering the huge amount of interest in the pledge card last time, it is surprising it has taken so long for the media to cover this issue. Has TVNZ or Radio NZ told their viewers and listeners that Labour and “friends” changed the law to make these info kits legal?

The second issue is whether or not the info kits are advertisements under the Electoral Finance Act. I tend to think they are not. The issue for me is whether MPs should be allowed to use their taxpayer funded budgets so close to an election to be writing and sending stuff to tens of thousands of voters.

Tomorrow is the final day people can register to be third parties. From tomorrow it will be too late, and if an issue arises that you want to spend money on advocating for or against, you will be restricted to just $12,000.

Take an example. Think if the Government announced this Monday rather than last Monday their $150 billion bank deposit guarantee. And think if you were in an affected sector and thought the scheme announced would be a disaster because (for example) it includes finance companies. The cost of getting it wrong could be billions. But you would be restricted to spending $12,000 advocating against a $150 billion bank deposit guarantee scheme unless you managed to do it without criticising the parties advocating it in a way that could turn voters off them.

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

One of the nasty clauses of the Electoral Finance Act is it requires home or residential addresses to be used in all authorisatiion statements. There may be some merit in this for material put out by individuals, but for parties and organisations their registered office is all that should be needed – as was the case in the past.

Over the weekend four women stuck 1,000 (plastic( knives into the Bob McCoskrie’s lawn. They also placed an (ironically) anonymous note on his front door.

This is thuggish intimidatory behaviour. I have condemned mens rights groups for their antics outside the homes of Judges and lawyers, and this is even worse. It is clearly designed to intimidate.

It is possible the people responsible could have found Bob’s address even if he was not forced to have it on election material for Family First. But that is not the point – there is a difference between being in the White Pages and having to have your home address plastered on pamphlets, websites and billboards. I know of several women who have refused to be financial agents because they don’t want their home address published so widely.

Just another reason to vote for parties that will repeal the Electoral Finance Act.