Kiwiblog

Labour MP Grant Robertson blogs:

I probably disagree with John Minto about as much as I agree with him in terms of the various statements he makes.  I know that he irritates some New Zealanders, but he is someone who stands up staunchly for what he believes, and has played a real part in raising issues that  are important to New Zealand and New Zealanders.

If  it is true as reported on Stuff that the police are seeking an order to destroy the megaphone he used as part of his protest at the tennis in Auckland last week, then this is shocking.  We have to defend the right to protest in this country.  I have been on both sides of the fence when it comes to protests and they are a critical part of a functioning democracy.

Now I agree with Grant the Police should not be seeking an order to destory the megaphone. If Minto broke the law, then he will have his day in court, but destroying megaphones is a bad act symbolically.

Labour’s love of megaphones though seems only to extend to when they are in Opposition. What did they do when they were Government. This is what Labour, NZ First and the Greens voted for in reporting back the from select committee the Electoral Finance Bill:

Other types of broadcasting, such as the use of loudspeakers and megaphones, would be captured by the new provision in paragraph (i).

Paragraph (i) was expanding the definition of publish to include:

(i) bring to the notice of the public in any other manner

So Labour, the Greens and NZ First wanted to make it illegal to use megaphones to advocate against a party or candidate, unless one spoke your name and home address out loud to authorise the message.

So while supporting Grant on John Minto’s megaphone, I do wonder where was Grant’s voice when his own party was trying to regulate megaphone use in election year?

Incidentally the outcry from myself and some others over this odious clause, saw the then Government backdown on it just a few days later.

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.

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.

Family First has rated every party leader for their “family friendliness” as they see it. This is a great idea, as those who agree with Family First’s values can use it as a positive guide, and those who disagree can use it as a negative guide. More lobby groups should do this sort of stuff.

The overall ratings (in order) for each Leader is:

1. Winston Peters 77%
2. Peter Dunne 69%
3. Pita Sharples 57%
4. Tariana Turia 54%
5. John Key 54%
6. Jim Anderton 38%
7. Rodney Hide 31%
8. Jeanette Fitzsimons 15%
9. Helen Clark 8%

Winston is the poster boy for social conservatism which is why it is so hilarious that so many on the left are doing everything possible to defend him.

There were 13 issues or votes they judged the Leaders on. I list them below, along with how I would have voted on it if I was an MP.

1. Prostitution Bill- DPF support – 0
2. Civil Unions – DPF support – 0
3. Relationships Bill – DPF support – 0
4. Parental Notification for under 16 abortions – DPF support – 1 (I support notification, not approval)
5. Euthanasia – DPF support – 0
6. Care of Children – DPF oppose – 1
7. Marriage Amendment (define as man/woman only) – DPF oppose – 0
8. Anti-Smacking – DPF oppose – 1
9. Easter Trading – DPF support – 0
10. Easter Sunday Trading – DPF support – 0
11. Drinking Age to 20 – DPF oppose – 0
12. Street Prostitution (Manukau) – DPF oppose – 0
13. Electoral Finance – DPF oppose – 1

So if I was a party leader I would be scored 4/13 or 31% – the same as Rodney Hide.

“It has everything to do with it. I say to Dr Mapp that is why we want to know who is backing National, because we are not going to have the kind of covert money that is destroying democracy in some countries in the Pacific today.”

- Rt Hon Winston Peters during the third reading of the Electoral Finance Bill, railing against “covert money”

Some related facts about Owen Glenn:

1. He was not born in New Zealand.
2. He has not lived in New Zealand for over 40 years.
3. He is not eligible to vote in New Zealand.
4. He is estimated to have a fortune of around NZ$1.1 billion.
5. He donated $500,000 to Labour for the 2005 election.
6. This is the largest known donor ever in New Zealand politics.
7. The Labour Party amended the Electoral Finance Bill to specifically allow him to keep donating money, while restricting other foreign donations to $1,000 (by defining a foreign donation as being okay from overseas residents who are NZ citizens even though they are ineligible to enrol or vote)
8. He gave Labour a further $100,000 interest free loan in 2007.
9. Labour gave him a gong – Officer of the NZ Order of Merit in 2007.
10. Labour President Mike Williams lied when he said they had not received a donation from Owen Glenn since the 2005 election, as the interest free loan counts as a donation.
11. Mike Williams has said he will be asking Owen Glenn for money for the 2008 election.
12. Owen Glenn says Bill Lloyd of Sovereign Yachts had been “badly dealt by” over getting cheap Government land for his business “…but it’s all been resolved through the good services of Mike Williams, the President of the Labour Party, who’s done a mammoth job.”
13. Owen Glenn wants to be Honorary Consul for NZ to Monaco.
14. Before Owen wanted this post, the Government had repeatedly ruled out having a Consul in Monaco.
15. Mike Williams lobbied Helen Clark on behalf of Owen Glenn to get him made Consul.
16. Owen Glenn lobbed Winston Peters to be made Consul and said he will be confirmed as Consul “when Peters gets off his arse”.
17. Owen Glenn was never given any negative signals about being made Consul even though a previous expression of interest by an individual was comprehensively ruled out by the Government.
18. Owen Glenn says he has donated money to NZ First.
19. The then NZ First President says a five figure donation closer to $100,000 than $10,000 appeared anonymously in their bank account in December 2007.
20. Winston Peters says NZ First has never received any money from Owen Glenn or his associates.
21. NZ First filed a donations return claiming no-one gave then more than $10,000 in 2007.
22. Owen Glenn’s PR firm advised Owen Glenn not to contradict Winston’s denials even though he did make a donation.
23. The Maori Party say someone offered them $250,000 as a campaign donation before the 2005 election if it agreed to support Labour. The offer was made twice.
24. The Maori Party say it was made on behalf of someone who “lived outside New Zealand, and had donated money to the Labour Party” and the intermediary met with him on a yacht or a boat.
25. Owen Glenn’s PR firm says he was right to deny he made the offer.
26. Labour and NZ First forced through the Electoral Finance Act whose purpose is “to strengthen the law governing electoral financing and broadcasting, in order to … prevent the undue influence of wealth on electoral outcomes and … provide greater transparency and accountability on the part of candidates, parties, and other persons engaged in election activities in order to minimise the perception of corruption”

John Boscawen has kindly sent me a copy of the judgement which is here as a pdf.

As I said earlier the protection o parliamentary privilege saw the challenge to the Electoral Finance Bill dismissed. The similiar 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).

John Boscawen made some comments in the earlier thread which are worth repeating here:

Firstly there can be no doubt that one of the government’s orginal intentions was that anyone who wanted to express an opinion on any political issue in election year would first be required to sign a statutory declartion before they spent a single dollar doing so. ( and Graeme Edgler and others can you quote many examples of not even having to spend a dollar before being caught) .

That is right, whether you agreed with a government policy or you had to first sign a statutory declaration.

The Crown Law office specifically considered this issue and concluded that it was reasonable and was not inconsistent with the provisions of the Bill of Rights. ( although we should be grateful that they did at least state this was at the outer limit of what would be acceptable). That opinion is dated 26 June 2007, one month before the bill had its first reading. Presumably the Attorney General acted on that advice when he did not notify parliament that the EFB was inconsistent with Bora.

To me it is incomprehensible that the Crown Law office could consisder that it would be acceptable to make all New Zealanders first sign a statutory declaration before they spent a sinle dollar expressing a political view in election year. I would think that most New Zealanders, whether they supportted the left or the right wing of politics would consider this unacceptable.

We took the action we did becausee in my view that approval could not go unchallenged. To allow it to go unchallenged will allow the Crown Law office to write similiar opinions in future. We were looking to the court to tell the Crown Law office and politicians of all persuassions that this was not acceptable.

That original Crown Law opinion was a shocker. The Law Society and Human Rights Commission made mincemeat of it. One does have to wonder how it came to be signed off.

NZPA reports that the lawsuit seeking declaration that the Electoral Finance Bill breached the Bill of Rights, and that the Attorney-General erred in not informing Parliament it did has failed due to parliamentary privilege:

The applicants alleged the Electoral Finance Act did breach the Bill of Rights Act, and that Attorney-General Michael Cullen should have informed Parliament of this.

Justice Clifford said the Attorney-General had been performing a parliamentary function, and had not been acting as a member of the Government.

That meant the Attorney-General’s function was in the privileged category of internal parliamentary proceedings, and was non-justiciable.

This was not unexpected. A lawyer commented to me a while back that the chance of making it past parliamentary privilege was at best 3/10. They also said that if it did make it past the chance of sucess would then have been 9/10 as it was incomprehensible that anyone could find the original bill was not in conflict with the Bill of Rights.

It isn’t clear whether this decision affects only the lawsuit relating to whether the Electoral Finance Bill breached the Bill of Rights, or also affects the other lawsuit by John Boscawen and co seeking a declaration on whether the Electoral Finance Act is also in breach.

The NZ Herald reports on the arguments in court yesterday on the Electoral Finance Act:

Aucklander John Boscawen – a fierce opponent of the Electoral Finance legislation – along with ACT MP Rodney Hide, Sensible Sentencing Trust spokesman Garth McVicar and Grey Power president Graham Stairmand, want to take a case to court, seeking a declaration that Attorney General Michael Cullen should have told Parliament that the law breached the Bill of Rights.

In the High Court at Wellington yesterday, Dr Cullen sought to have the case struck out. Crown lawyer John Pike argued that parliamentary privilege prevented the court from inquiring into the content of the legislation and the debate around it, and also that there was no settled legal view that the court could declare that the Electoral Finance Act was inconsistent with the Bill of Rights.

It is important to note the arguments yesterday were on the Crown’s application to strike the lawsuit out on the grounds of parliamentary privilege. It is only if they get past this strike out attempt, will the principal issues of whether the EFB and EFA breach the Bill of Rights get determined.

The legal arguments took all day and traversed time and space – judgments from three centuries, spanning four continents, were cited by lawyers from both sides. Justice Denis Clifford reserved his decision, a judgment which will instigate an intense constitutional debate on the roles of Parliament and the courts if he permits the case to proceed.

Nikki Pender, for Boscawen and the other complainants, said the Electoral Finance Act contained myriad provisions which breached the Bill of Rights, and that the Attorney General should have warned Parliament of that – as section seven of the Bill of Rights obliged him to do.

In a sense there are two issues here – whether the Electoral Finance Bill as originally drafted breached the Bill of Rights and whether the final Electoral Finance Act is inconsistent with it.

The NZ Law Society and Human Rights Commission (and almost every lawyer in NZ who has offered an opinion on this) is adamant the original EFB was in breach, and I would put the chance of victory there as well over 95% if the strike out application is unsuccessful. I mean the original EFB would have required every NZer to swear a statutory declaration before even offering an opinion on a political issue. It was, to quote Nicky Hager, something you would expect from the Nazi Party.

The final version of the EFA, while still seriously flawed in my opinion, certainly was a significant improvement over the original EFB and the arguments over how it stacks up with the Bill of Rights are more finely balanced.

Since the 1st of January there have been around 470 articles (and from what I can tell not a single one is favourable to the EFA or the Government) in the NZPA database mentioning the Electoral Finance Act. The Government hoped it would disappear as an issue within a few weeks, and instead it has been a relentless string of negative stories.

I am looking forward to the first reading of the Electoral Finance Repeal Act – hopefully it can be introduced before Christmas.

ACT have announced today that they have received a $100,000 donation from Alan Gibbs.

This is one of the few laudable aspects of the Electoral Finance Act, that significant donors are identified. It helps removes the suspicion around political financing. Transparency is a good thing.

However it is worth remembering this is not why the Electoral Finance Bill was introduced to Parliament. Helen Clark stripped the draft bill of almost any provisions changing the law around donations. It was only after there was a public outcry that such provisions were put in, and even then the law was written to protect Labour’s anonymous donors by still allowing $240,000 of anonymous donations per election.

I was one of those who submitted to Parliament in favour of not allowing anonymous donations over $10,000. Labour’s law still allow anonymous donations of $36,000 at a time and a combination of anonymous and undisclosed donations allows someone to donate $66,000 in an electoral cycle and not be identified publicly.

So it is good to see some greater transparency due to the EFA, but that is despite Labour not because of them. They had no such provisions if the EFB which Cabinet signed off on.

The Press Council has ruled that two of the Herald’s editorials against the Electoral Finance Act were inaccurate due to omission of significant details. The Coalition for Open Government sucessfully laid the complaints, which means they have now won complaints against TV stations for initially reporting the EFB was better than it was (the TV stations made the mistake of believing the Minister’s spin in stead of reading the Bill) and against the Herald for making it sound worse than it was.

The basic issue was statements made in editorials that anyone wanting to promote and issue of concern would have to register as a third party, and that they did not mention this only applies if your spending is over $5,000 (in the original bill) or over $12,000 (in the revised bill). The Herald acknowledged that they probably should have, but stated the limit had been mentioned in other stories.

Incidentially if you wish to campaign for or against a candidate the limit is just $1,000 before you must register.

The Council summarises:

The council accepts that it is probably correct that any person or group wanting to promote an issue of concern would be required to spend more than $12,000.

However, this is not the point. The editorial suggested that anyone who wished to promote an issue of concern would need to register as a third party.

The failure to note the $12,000 threshold was a mis-statement of fact, which in the council’s view was not minimised by the words “to promote an issue of concern”.

Nor is it sufficient in the council’s view to say that the correct amount had been mentioned on other occasions.

Pretty difficult to disagree with the conclusion. The level at which you need to register is material and should have been in the editorials.

Incidentally it is well below the $40,000 recommended by electoral authorities.