There are a growing number of very very worried MPs, as the ramifications of the Electoral Finance Act become clearer – specifically the extension of the regulated period from 90 days to all of 2008.
You see the Government wanted to have a law which said if The Parliamentary Service approved some expenditure, it was automatically exempt from the Electoral Finance Act. But they realised the backlash if they stated it that baldly would be immense, so they tried to do it implicitly.
I blogged on this in December here and here. They key section for party expenses is s94(2), paragraph (g) which is:
election expense does not include the cost of any publications that relate to a member of Parliament in his or her capacity as a member of Parliament.
and for candidate expenses s 71 para (c)(i):
that relates to the campaign for the return of the candidate in the candidate’s capacity as a candidate for the district and not to the candidate in his or her capacity as a member of Parliament or as the holder of any other office
But the problem for the Government and for all MPs, is that the Electoral Commission and The Parliamentary Service have both said that just because something is approved by The Parliamentary Service doesn’t mean it will be exempt as an election expense. It will still be judged on its merits as to whether or not it is seen as an election advertisement (encourages or persuades people to vote for or against a party or type of party) and whether it qualifies as an exception to the election expense definition.
It is now dawning with a sense of dread on some MPs that all their taxpayer funded publications in 2008, run the risk of being deemed an election expense. If their newsletter advocates against other parties, then will that be an expense or not?
Causing even more fear, is the fact the Electoral Commission will not pre-approve material (which is not their role). I am told by a (non National) MP that they will not rule in advance on whether a particular publication will be an election expense or not. Instead they will keep a file of all complaints about publications, and after the election determine if they are expenses or not.
Now one sees why MPs are starting to panic. Almost every single MP spends more than $20,000 a year on taxpayer funded publications. In fact some MPs have *already* spent more than $20,000. And if their publications are deemed election expenses, then they are facing either prosecution for over-spending, or much much worse – electoral petitions to over-turn their re-election.
You think Florida was bad. Imagine a scenario where say 50 of the 70 electorate MPs face an electoral petition, and the courts decide.
Now one might say, what is the probability that material approved by The Parliamentary Service could be found to be an election advertisement. Well the Solictor-General, Auditor-General, Chief Electoral Officer and Electoral Commission all found in different capacities that a massive amount of material last election, was electioneering.
When the regulated period was only 90 days, MPs could avoid the uncertainty by not spending any money on publications (except very basic stuff like electorate office ads) in the final weeks leading up to the election. But MPs don’t want to spend all of 2008 unable to publish anything, yet they don’t want to run the risk of finding out after an election they have over-spent because of their newsletter in February, and losing their seat.
But that isn’t even the end of the matter. You see even if a publication qualifies as “in his or her capacity as an MP” and exempt as an election expense, it is not exempt as an election advertisement. Confused? I’ll try and explain.
The Act basically defines what is an election advertisement, and then defines an election expense as the cost of that advertisement. Now the exemption for parliamentary purposes only applies in terms of counting it as an expense, but not for whether or not it is an advertisement.
And here is the further problem causing some panic for MPs. Even if their publications do not count as an election expense, they may still be regarded as an election advertisement if for example they persuade or encourage you not to vote for another party. So the MPs need to put “Authorised by Party Financial Agent, Home Address of PFA” on their publications or run the risk of breaching the Electoral Finance Act as an unauthorised advertisement.
But imagine how it looks to the public to have the parliamentary crest on a publication, but also an authorisation by the political party’s financial agent?
And MPs are worried that if they do put the authorisation on, then it is harder for them to argue it is not an election expense – even though it is quite logical under the Act that it can be one and not the other due to the exemption.
The potential for multiple electoral petitions is quite immense. And it is worth recalling what happens if an electoral petition relating to over-spending is successful. The result is voided, and a by-election is called. And if that seat is won by another party, that party which held that seat does not gain a List MP as compensation.
Tags: Electoral Finance Act
, electoral petitions