Kiwiblog

The EPMU is holding a march in Auckland this afternoon for worker’s rights.

I guess the right to stand for Parliament for the party of your choice is not one of them.

I’ve been at the Wellington High Court all day, listening to arguments in the court case over whether the Electoral Commission was correct to allow the EPMU to register as a third party, or was the EPMU a person involved in the administration of the affairs of the Labour Party.

There is a significant barrier for the plaintiff (National) to overcome. Courts are traditionally reluctant to second guess the decisions of specialist or expert bodies such as the Electoral Commission. The court will only act if they Commission has clearly made an error in law, or reached a conclusion that is so unreasonable it is untenable. So if the action fails, it does not necessarily mean the Court has decided the Electoral Commission made the right decision. It means that the decision was a reasonable decision to make.

Obviously National, as plaintiffs, think it was an unreasonable decision and that there were errors in law. National probably had three major strings to its case:

1. The Electoral Commission erred in not obtaining a copy of the EPMU constitution which states in their Rule 23 that the National Executive (or a sub-committee of it) shall appoint all delegates from the EPMU to Labour Party committees at national, regional and electorate level. This goes against the contention that EPMU members are there just as members, not representing the EPMU
2. The Electoral Commission erred in interpreting “involved in the administration of the affairs of a party” as menial administrative tasks and not governance. The analogy of a company director was used – they sit on the board and govern, but are considered to be involved in the administration. There is no case law anywhere on this point, so it was argued from first principles and dictionary definitions. I have mentioned elsewhere that under the Commission’s interpretation even a Party President could be seen as not involved in the administration, which makes the whole ineligibility clause almost meaningless.
3. That while Andrew Little was elected Affiliates Vice-President by the Labour Conference, he is bound by the EPMU rules to act in the best interests of the EPMU. But also, even putting aside the nature of Andrew’s role on the National Council, there is no question the EPMU has direct representation on all 69 Electorate Committees, all the local body committees and all six Regional Councils, and that this constitutes involvement in the administration of the affairs.

It would be a brave person who predicts the outcome, as Justice MacKenzie was giving nothing away with his body language and asked no significant questions to either side. As I said above, it is a very significant hurdle to get over, to persuade the Court to “second guess” (and Crown Law pushed strongly that they should not do so in this case), but I thought the lawyers for National did a good job arguing the case that this was one of those times where they should. But again, no predictions on outcome from me.

Of course I am more than an interested bystander as I wrote the original letters which raised the eligibility issue, so I smiled at the number of times the words “Farrar affadavit” came up in court.  Regardless of the outcome, it will be a very interesting judgement to consider.

Idiot/Savant takes a principled stand on the suspension of Shawn Tan by the EPMU, due to his candidacy for ACT:

That’s just not on. It’s unfair, it compromises the right of everyone to participate directly in our democracy, and if the political shoe had been on the other foot – if Tan had worked for Business NZ and was standing for Labour – they would be shouting this to the heavens.

Indeed you could just imagine the outcry. It would probably be led by, umm, unions such as the EPMU.

But quite apart from being unfair and hypocritical, it is also illegal. “Political opinion” is a prohibited ground of discrimination in the Human Rights Act. Employers are forbidden from refusing to employ someone, offer them less favourable terms and conditions and opportunities, or terminate or subject them to any detriment, on the basis of their political beliefs. While there is rightly an exemption for work of a political nature, it only covers political advisors to politicians or candidates, or employees of a political party. And as the Electoral Commission noted a few weeks ago, the EPMU isn’t the Labour Party.

And that case goes to court on Monday incidentally.

S21(1)(j) is the section in the Human Rights Act that prohibits discrimination in employment on the basis of political opinion.

The Electoral Act also goes to some length to protect the rights of people to stand for Parliament. s52 deals with how ever state servants are allowed as of right to stand for Parliament, with some provisions about how they are only temporarily stood down.

I/S concludes:

The EPMU should give Tan his job back. And otherwise, they deserve to be taken to the cleaners over this.

It would be a fascinating court case. Presumably the EPMU would not represent Mr Tan against the EPMU. I suggest he joins UNITE!

There are many many issues I disgaree with NRT on, and some of his posts enrage me, as I am sure mine sometimes enrage him. But posts like the above is why he remains the most respected voice on the left in the blogosphere.

At dinner last night were candidates 1, 2, 3 and 4 on the ACT Party List. Someone joked I should get a photo with them and announce that I am the secret No 5 candidate

There has been some discussion as to why long time stalwart and candidate Lindsay Mitchell was not on the list. Lindsay explains on her own blog that she refused the No 14 spot as she was No 9 in 2005, and didn’t feel her performance warranted a demotion. Lindsay certainly has been tireless in advocating for ACT, and has a lot of sympathy for her position.

Idiot/Savant at No Right Turn compares the 2005 and 2008 lists. His table starkly illustrates the change. Of the top 12 candidates in 2008, only two of them (Rodney and Heather) were even candidates in 2005. In fact only seven of their top 30 candidates were candidates in 2005.

I met yesterday their No 10 candidate, Shawn Tan. Shawn struck me a very nice and dedicated guy, but has been the subject of some criticism as he was a Green Party activist for many years. Shawn has posted a response as a comment on the earlier thread. Some interesting quotes:

No, I haven’t lost my heart; neither have I experienced premature brain growth. My point is, my ideals used to be utopian ones, based on the theories I read during my tenure as an undergraduate university student. Having been in the workforce for approximately two-and-a-half years, and in fact having worked in the union movement for virtually that entire period, let’s just say my eyes have been opened to the disjunct between leftist theory and the workings of the real world. My ideals today are therefore based on pragmatism and common sense – values and principles embodied by the ACT Party.

And even better:

ACT’s stance on Law and Order is indeed what convinced me to join, though not the only reason why I joined, the ACT Party. My association with ACT is quite simply the culmination of a journey of self-discovery, ‘quarter-life crisis’ and cultural reconnection that began at the end of last year, and precipitated by the ‘South Auckland saga’.

In fact, my alias ‘bledback2life’ was chosen to educidate my transition (some would say transmogrification) from the Greens and the Left to ACT and the realm of liberalism. I juxtaposed the concept of bleeding/blood loss with that of resurrection, in a deliberate act of oxymoronic temerity, in order to illustrate that it has been the exorcising of my Marxist demons, and the purging of Leftist ideology, from my mind and body which has allowed me to be cleansed and thus feel alive once again.

I’ve always been a civil libertarian, even when I identified with various leftist schools of thought. Now that I have embraced economic liberty too, only now can I truly call myself a coherent and consistent proponent of freedom in a holistic sense.

Yes economic liberty and social liberty are natural partners.

Shaun says one of the catalysts for his conversion was Sue Bradford blaming some murders (in 2008) in South Auckland on the policies of Roger Douglas and Ruth Richardson. It was the final straw it seems.

Now NBR has what may become a very big story about Shaun. Shaun is employed by that independent third party, the EPMU. NBR reports Shaun has been stood down because he is standing for ACT. The right to stand for Parliament is a fundamental right, and employers are on very dangerous grounds when they try to limit it, or even worse dictate what parties are acceptable for employees to stand for. The EPMU staff have a clause in their collective contract stating staff must get permission of the national executive to stand for Parliament. It would be a very interesting court case that tested the legality of that clause.

I’ve just been told by a journalist that the Electoral Commission has decided to allow the EPMU and four other unions which have chosen to be affiliate members of the Labour Party to register as a third party. This means the five of them can collectively spend $600,000 attacking National on behalf of Labour.

I think the Electoral Commission has got it massively wrong – again. Their decision that “person” in the EFA excluded organisations got over-turned by the High Court quite comprehensively.

On this issue, I am astonished that they could have reached a conclusion that the EPMU is not involved in the administration of the Labour Party, when there was documented evidence they take an active role in selections, conferences and the like. They in fact have a constitutional entitlement which probably makes them the most powerful member after the President.

The Electoral Commission was required to turn down any third party application unless they were posiively satisifed they were not involved in a party’s administration. This meant that if it was a borderline call, it should still have been turned down. And I don’t think it was even close to borderline.

My arguments on the EPMU’s involement with Labour are here. The Electoral Commission decision is here. At this stage they have given no reasoning for their decision.

I won’t decide on any next steps until I have read the rationale for their decision.

There have been many decisions the Electoral Commission has taken which I have supported. There have also been several where I disagreed with their decision, but believe it was a reasonable decision nonetheless.

This decision, and their earlier one which the High Court over-turned on the EPMU, fall into a category where I don’t think any reasonable person could reach the conclusion they have.

Saturday’s Press editorial was on the Electoral Finance Act:

The mire that is the Electoral Finance Act grows deeper by the week. It is now more than four months since the controversial legislation came into effect and the last possible date for the general election is less than half a year away, writes The Press in an editorial.

This is the time when political parties and lobby groups should be finalising their campaign strategies, with the confidence that iron-clad election laws provide. But as this week’s High Court case involving the Engineering, Printing and Manufacturing Union has demonstrated, the new regime of the controversial act remains murky.

More than murky. What is and is not an election advertisement is still a matter of conjecture.

This case was about whether the union could register with the Electoral Commission as a third party, or lobby group, under the act, which would entitle it to spend up to $120,000 on election advertising. Unregistered groups or individuals have a far smaller $12,000 spending cap.

This was challenged on the grounds that a “person” involved in the administration of a political party was not eligible to be registered as a third party. Last month the commission, after taking Crown Law Office advice, decided that the EPMU was not a natural person and therefore decided to register the union.

There is a story to be told about Crown Law and its advice, such as the growing number of Departments who are no longer using Crown Law for legal advice. It has become all too political.

But the High Court in Wellington took the opposite position on this issue. It did not rule on whether the EPMU’s close links with Labour would make it ineligible to be a third party, leaving this question to be resolved by the commission. …

A big test of the legislation’s treatment of third parties could come if the EPMU is refused registration by the commission. The union is adamant that if this occurs it will still mount a campaign based around workers’ rights and wages.

They will need to be very very careful. If parties have policies on workers’ rights and wages, then a campaign on those issues could well be seen to be an election advertisement. And the fact that the EPMU is on the record as saying their aim is to influence the election outcome with their campaign means that a Judge could find a breach of the Act was deliberate and a corrupt practice.

Issues-based campaigning by non-registered lobby groups is permitted under the act, and there is no spending limit, providing advertising does not encourage people to vote, or not vote, for a political party or even a type of party. But it would be a neat and delicate trick to run a publicity campaign based around workers’ rights and which cost more than $12,000 without breaching this particular provision, given the politically charged nature of employment relations in New Zealand history.

Indeed.

The commission, which plays a major role in implementing the electoral finance regime, deserves some sympathy. It has been forced to make decisions on a case-by-case basis over issues where the meaning of the act is unclear, as shown by the differing legal opinions over the EPMU bid for third-party status.

Oh the Commission has a damn awful job thanks to this stupid law. Having said that, when they see crappy legal advice from Crown Law (and their affidavit shows they had some issues with it) they could choose to seek alternative advice.

The commission has drawn some unwarranted criticism for its decisions, but the real fault lies with the Government and those support parties which demanded this legislation. Most New Zealanders would believe there is a place for third-party election advertising, because this allows non-politicians to participate in the democratic process. Most people, after the Exclusive Brethren campaign last election, would also argue that there must be financial limits on third parties to prevent moneyed interests buying an election. The act is an attempt to reconcile these goals.

And if the Government has not drawn up the law in secret, but embarked on a public consultation exercise prior to introducing a law change, a much more workable regime could have been developed. But they tried to “screw the scrum” with a partisan incompetent law – and in the process shattering the constitutional conventions around the Electoral Act.

But, even leaving aside longstanding accusations that the legislation screws the scrum in favour of the Government, it is also failing in a practical sense, and one key reason for this is that it took effect on January 1.

A more sensible course would have been to have delayed its introduction, at least for this year’s election. This would have provided a breathing space during which the ambiguities in the act could have been calmly resolved, not allowed to become political points-scoring issues in their own right.

Or to have kept the regulated period at 90 days, so one would have had January to July to clarify the law in respect the regulated period activities.

The Judge was Justice MacKenzie. The full judgement is here Here are some key extracts:

[18] Because there is no legal impossibility involved in the proposition that an artificial person might be involved in the administration of the affairs of a party, to read the word “person” in s 13(2)(f) as limited to natural persons would in effect create two categories of persons involved in the administration of the affairs of a party:
(a) Natural persons ,who are ineligible to be listed as a third party; and
(b) Artificial persons, who are eligible to be listed as a third party.

Exactly. It would create an illogical distinction. If a “person” is capable of being involved in the administration of a political party, the ineligibility criteria must apply to them, regardless of the type of person (natural vs legal).

[21] Second, in the absence of such a legal prohibition, the question of whether a particular person is involved in the administration of the affairs of the company is a question of fact. The scheme of the Act is such that the determination of that question of fact is a matter for the Commission. Under s 17(1)(c) the Commission must refuse an application if it is not satisfied that the applicant is eligible to be listed. To interpret s 13(2)(f) as not applying as a matter of law to artificial persons, by adopting a narrow meaning of the word “person” from its context in the wider phrase, would be to pre-empt the very question which the Commission is required to address.

This is why I am surprised the Electoral Commission followed the Crown Law advice, as doing so actually meant the Commission would not be as effective in doing its job in making sure only eligible persons can register as third parties. To be fair to the Electoral Commission, they did say in their affidavit something along the lines of having some reservations about the advice, but by consensus decided to accept it.

Crown Law now have the dubious distinction of having been patently wrong by saying the original EFB did not breach the Bill of Rights and with their definition of “person”.

[22] Third, I can discern no reason, derived from the purposes of the Act, which would justify exclusion, from the category of persons created by s 13(2)(f), of an artificial person involved in the administration of the affairs of a party, as distinct from a natural person who is so involved. The clear purpose of s 13(2)(f) is to ensure a degree of separation between persons involved in the administration of political parties, on the one hand, and third parties, on the other. That purpose is best achieved by excluding from eligibility all persons involved in the administration of a political party, not merely a subset of such persons.

This goes right to the heart of the case – what interpretation best meets the overall purpose of the Act.

[27] For these reasons I conclude that, on its proper interpretation, the word “person” in s 13(2)(f) bears the meaning given to it by s 29 of the Interpretation Act 1999.

I had had so many lawyers tell me that this must be the case, I would have been very surprised if the case had gone the other way.

[29] For these reasons, I consider that the Union does potentially fall within the scope of s 13(2)(f) of the EFA and that the question of whether it does so must be determined by the Commission before it can be listed as a third party.

As previously stated, this does not mean the EPMU is ineligible. It means the Electoral Commission must now determine if its opinion that EPMU is involved in the administration of the Labour Party. I am of course of the view that there is an overwhelming case that they are involved, and hence ineligible.

If they fail to be registered they can still spend their money campaigning. They just need Mike Smith’s permission and for their spending to count as part of the cap for Labour – the party they have voluntarily joined and are involved in.

[34] The extent of enquiry which the Commission may make, and the processes which it may undertake, to determine whether, in particular, s 17(1)(c) is met, based on the application made under s 15(3), is not specified in the Act. It is a matter for the Commission. The Commission has power, under s 6(2)(aa) of the Electoral Act 1993 “to make such enquiries as the Commission thinks necessary for the proper discharge of its functions”. I do not consider that it is appropriate for this Court to direct the Commission as to how it should go about the performance of its functions, or how it should conduct its enquires.

This is where the EPMU counter-claim is turned down. The Electoral Commission I am sure will be pleased they retain discretion as to whether to allow members of the public, like myself, to offer an opinion on matters before them.

[35] There will be a declaration that word “person” in s 13(2)(f) of the Electoral Finance Act 2007 has the meaning given to it by s 29 of the Interpretation Act 1999.

I doubt there will be an appeal. I can probably now reveal that the legal team were so confident of victory that they were talking of going to the Supreme Court if necessary. In fact I suspect they may even be a bit disappointed they won, as it means no appeal work

Labour now have to face the possibility that the law they rammed through Parliament may end up making their largest ally the biggest victim.

Have just received the judgement of the High Court in the case regarding the Electoral Commission and the EPMU, and am pleased to report that the Court has ruled the Electoral Commission was wrong (and hence the Crown Law advice was also wrong) to decide that the ineligibity to be a third party criteria of “a person involved in the administration of the affairs of a party” only referred to natural persons and not legal persons including incorporated societies.

This means the Electoral Commission decision granting the EPMU application is over-turned and the Electoral Commission now has to decide whether the EPMU is involved in the administration of the affairs of the Labour Party.

The EPMU also lost its counter claim asking for the Electoral Commission not to allow objections to applications, before they had made their decision.

I will put the pdf of the decision up shortly.

Both Poneke and myself received a very unexpected but lovely e-mail from Fouad al-Farhan, the Saudia Arabian blogger who was detained without charge for 137 days, and released finally last month. He thanked us for our support.

The Hive also did a lot and Poneke actually asked MFAT officials whether the NZ Government would take action. Sadly the most they would do is have a “watching brief”. No Right Turn, and no doubt other blogs, also lent their support. Oh yes the EPMU also supported the Government taking action.

While I am sure the blogs had no impact on the Saudi Government (hell we couldn’t even get the NZ Government to stand up for freedom of speech), Fouad says that he found it incredibly heartening to be released and read how people in NZ were advocating on his behalf. Through a NZ professional wrestler who once visited his vlllage to promote Anchor dairy products, he has always wanted to visit NZ.

Extracts from the e-mail:

Dear David, I’m Fouad Al-Farhan. I’m the Saudi Blogger who was arrested 137 days because of his political writing in Saudi Arabia. In the mid 80s when I was a kid, the famous New Zealand wrestler Tony Garea (http://en.wikipedia.org/wiki/Tony_Garea) visited our small villiage here in Saudi Arabia (Albaha) on a marketing campaign to promote the famous NZ cheese (Anchor). In that days, wrestling meant a big thing to my people. My village people loved Tony Garea before his visit. When he arrived, they made a big welcome festival for him. They even danced and said poems about his heroism. I still remember parts of it.

I replied, pointing out that many Kiwis would find it very amusing that a professional wrestler promoting cheese was our most successful marketing campaign

All my friends know about my dream of visiting New Zealand for a lengthy backpacking journey. I’m not sure if it’s going to happen anytime soon. I always have great admiration of the NZ people and the country. My best friend who was lucky to live there for a year keep telling me lovely stories about how peaceful and blessed your land is.

We do forget sometimes how lucky we are.

My government put me in a solitary confinement for 137 days. My cell was 2×3 meters. I never saw anybody except the interrogators once every couple of weeks. The rest of the days I was alone. They didn’t allow me to watch T.V, listen to radio, read any books or magazine or newspaper. I was not allowed to have a pen and a paper to write. I never saw the sun. I was completely cut off the world. All I had is our holy book (Quran) and prayer rug. So, I had a lot of time to think about my life. One of things that always came on mind in prison was New Zealand and my dream backpacking journey.

I can think of few things worse than solitary confinement. Hell I go crazy if I have nothing to do for even an hour on a plane. Five months with no Internet, no books, no music, no TV, and most of all no human contact would be unbearable.

I didn’t know that my case has reached NZ. I didn’t know that someone there in that beloved land thought, wrote, and cared about me. Internet is just great and you people deserve the land you love in. Your support and other NZ citizens like (http://poneke.wordpress.com) of my case meant a lot to me. It touched my heart deeply because I already have positive feelings toward your country and people since my childhood.

As I said, many NZ bloggers and others like the EPMU raised their voice in support. Getting this feedback from Faoud is a good reminder that we should be vocal more often.

I loved Tony Garea because my father did. I loved your country because of my best friend stories about it. These feelings have increased because of your support. I just can’t thank you enough for your support. It meant a lot to me more than you can imagine. Fouad Al-Farhan

Hopefully one day Fouad will be able to visit New Zealand. I suspect he will have no shortage of people willing to host him or show him around.

Yesterday and today have had the Electoral Finance Act occupying the time of the High Court, but with two different lawsuits before two different Judges.

I popped into court for some of yesterday to hear counsel for the National Party, the EPMU and the Electoral Commission make their cases over the EPMU’s application to be a third party. The hearing though really was just on the technical issue of whether the section which states a person can not be a third party if involved in the administration of a party’s affairs means legal persons (including organisations) or just natural persons.

This was pretty dry, and a few grumpy journalists who spent all day in court told me they blamed me for the most boring day of their life

I expect the Judge to rule in two to three weeks. If he rules it means legal persons, then the Electoral Commission will consider the issue of whether or not the EPMU is involved in Labour’s administration. If he rules natural person, then the EPMU gains registration unless National appeals.

I found it interesting that the EPMU QC made an two errors of fact [see update below] while I was there. Neither are particularly important though to the main case. He said that a party’s spending limit is $1 million rather than $1 million plus $20K per electorate they contest. More significantly he said if a party overspends their limit they can face an electoral petition. This is incorrect. There are no electoral consequences at all for over-spending on the party vote (hence why Labour did it last time). Merely prosecution. It is only over-spending on an electorate campaign which can result in an electoral petition.

The EPMU in its counterclaim has asked the Court to rule that the Electoral Commission was wrong to even allow members of the public such as me (I was officially referred to as a busybody in the EPMU affadavit which become the mode of address the National lawyers used when greeting me at the break ) object to an application, saying there is no requirement in the Act for people to be able to object. The Electoral Commission disagrees (saying it could lead to “absurd” outcomes) saying they have the power to go beyond the minimum requirements in the Act. If the EPMU won on this point, this could lead to significant changes in how the Commission operates – not just for third parties.

As I said, much of the arguments were on whether or not person includes organisations when judging third party ineligibility on the grounds of involvement in a party.

If National loses, then it means any organisation can be a third party, no matter how involved in a party. One example of this was pointed out to me by a senior official in ACT. ACT originally was an incorporated society called the Association of Consumers and Taxpayers. It then morphed into the ACT Party. However I am told the A.C.T. Incorporated Society still legally exists, and is controlled by the board of the ACT Party.

Now if the ruling goes against National, the ACT Society could register as a third party, despite being controlled by the ACT Party Board. Ridiculous, but that may be what the law is – time will tell.

Today sees the High Court consider an application from Crown Law to strike out the lawsuit from John Boscawen and the President of Grey Power and Director of the Sensible Sentencing Trust (and Rodney Hide).

The plaintiffs are asking for two things basically:

1. A ruling that the Attorney-General was wrong when he said the Electoral Finance Bill did not breach the Bill of Rights.
2. A finding that the Electoral Finance Act is inconsistent with the Bill of Rights Act.

Crown Law is claiming parliamentary privilege means the lawsuit should be struck out. So the arguments today will mainly be on parliamentary privilege not the Electoral Finance Act.

UPDATE: Andrew Little has pointed out to me that my statement regarding the EPMU QC should be amended. He referred me to the written submission which in regards to the party spending limit correctly states it is $1 million plus $20,000 per electorate. I think it is fair to say that in oral submission this was merely shortened to $1 million (which isn’t technically inaccurate if no electorates are contested) and at worse is a mere paraphrasing.

I do still hold the view that there was an error by referring to electoral petitions in relation to party spending, as such petitions can only relate to candidate spending. This point is unrelated to the first point of what the spending limit is. However I am going off memory and did not take written notes, so I have indicated I am happy to do a correction if I am incorrect. Having said that I do recall the statement reasonably clearly as I commented to the lawyer next to me that it was wrong, and he concurred. Regardless I would stress that the error is of little significance in this particular case, and I wouldn’t take my mentioning it as an indication as to which party the Judge will concur with.

In a political sense, I do think it is a real issue that there are no electoral consequences for party vote overspending, and if National wins and does a full review of the Electoral Act, it is an issue I hope will be considered.

EPMU National Secretary Andrew Little is warning of a desire for wage rises of around 5%. This is understandable with inflation so high, but risks a vicious cycle where inflation continues to get higher and higher and our wage levels relative to Australia drop. Closing the gap with Australia needs wage rises which reflect improved productivity – not wage rises which are just to compensate for prices rises. That is not to say people should not have wage increases to stop their incomes falling in real terms – just that it won’t close the trans-Tasman gap.

Little also calls for clarity over tax cuts:

He also hit out at the government’s “dithering” over tax cuts. One week the government was saying the cuts would take place this year, and then the next week it was suggesting they would be next year. “People are looking for some sort of relief now. People need it, and the government should understand that very clearly.”

Indeed.

It has been interesting to see the various posts and press releases on National’s Fibre proposal. I’ll try and cover most of them:

Phil at Whoar labels it as “what could well be an election winning policy.

Bomber at Tumeke calls it a “Bloody good idea”. Heh shouldn’t that be damn good idea

Mike at Morphyoss says:

“good on you National for releasing a good policy that will massively benefit New Zealand should they win the election. Now it is up to Labour to respond, remember fibre is extremely important to our economy and it is important that labour do something about that or they will lose the election”

David Slack at Public Address is unimpressed with some of the arguments against:

Here’s my response to the snide folk who have been saying: faster downloading for your YouTube and your porn and your pirated movies. I spend thousands on hosting in the USA because no-one here can set me up with a fast enough server and a big enough data allowance. That money could be being spent here. Ask Rod Drury what it could mean for the Software As A Service businesses he’s involved in.

It’s becoming trite to say it, but it’s nonetheless true: internet infrastructure is as important to us as roads, railways and refrigerated ships. Why not have it in abundance, rather than relatively scarce and expensive? Let a thousand e-commerce sites bloom!

Business NZ says

National’s plan to speed up provision of broadband to most premises is welcome, says Business NZ.

Chief Executive Phil O’Reilly says a public-private partnership is a logical way to spread the cost of such a huge undertaking.

“The challenge would be in working out just how the partnership would operate to ensure as many investors as possible could contribute, and in finding an appropriate regulatory regime.”

The EPMU is also reasonably supportive:

The Engineering, Printing and Manufacturing Union says John Key’s policy of rolling out fibre optic cable to 75% of New Zealand homes is a step in the right direction, but is concerned the task may be impossible given the current skills shortage.

“We really want to see this sort of project happen as any investment that will increase productivity in New Zealand is good for our members but until we see details on wages and training around this it’s hard to see how fibre roll-out will be possible.”

In terms of the issues the EPMU raises about skills and capacity, I don’t think it will be a major barrier (but certainly is a factor). When InternetNZ met with David Skilling of the NZ Institute last week to discuss his fibre proposal, one of the issues we raised was whether there was enough capacity to physically get fibre laid out by 2018 (note National is proposing 2014 as a target). Off memory Skilling indicated that they had talked to two separate engineering firms and their advice was there was enough people and and capacity to do it within 10 years, and even within five years if you really pushed it.

Now that is second or third hand so it doesn’t mean there may not be issues, but it does show some work has already been done looking at the capacity issue. One reason it is important is if supply can not meet the demand, prices could go up significantly. This has been an issue in the roading sector.

Jordan Carter is also pleased:

I am pleased that with John Key’s policy proposal, launched yesterday at a Chamber of Commerce lunch in Wellington, the debate about New Zealand’s broadband future has shifted from “whether” to do fibre to the home, to “how and how soon” to do it.

Professionally speaking, I am pleased there is now a political commitment from one major party to putting money into this. I am looking forward to assessing the various plans that come forward, and I’m sure that InternetNZ will be looking to persuade all parties to invest in this critical infrastructure.

As a Labour person I am quite sure the Nats’ proposal can be bettered, and that Labour will do so. David Cunliffe’s comments have critiqued what the Nats have proposed – the specifics of it, such as they are – but he has not criticised the goal. That’s good, because it is important for New Zealand to get on with it.

As Jordan says, the ball is in Labour’s court. A win-win will be as many parties as possible commited to the goal.

Final point, I ended up next to Williamson at the launch lunch. His zeal for this is impressive, given his record in government. It’s nice to see a genuine change of view and broad, cross-party acknowledgement of the importance of this kind of technology.

I was at the same table, and it is generous of Jordan to note Maurice’s enthusiastic advocacy of this proposal. Some have suggested he would have problems with it, but far from that – he has helped John Key with a fair bit of the research going into this.

In fact I joked to one person, that Maurice was now so enthusiastic about this type of intervention, it was a bit like how a smoker who gives up smoking becomes the most passionate anti-smoker

Also somewhat amusing was that a fellow guest at our table (not knowing Jordan’s political background I think) stated his view that Labour had done an awful job in this area. Now the last thing one wants is a big political debate over lunch, so Jordan was being very tactful with his response. I actually interjected into the conversation and praised most of what Labour and David Cunliffe has done in this area, and said the work they had done to date built a good base, but this was really about taking a big step up from that base.

Anyway I found it amusing to be defending Labour’s record in this area, in front of National’s IT/Comms spokesperson. I must say though I was disappointed with Cunliffe’s response to the policy, but I suppose he didn’t have much choice unless he could convince Michael Cullen to lend him a quick $1.5 billion

Finally on the luke-warm but positive side we have Russell Brown at Public Address:

National’s new $1.5 billion broadband spending proposal — it’s a bit soon to be calling it a “plan” — is nothing if not ambitious: 75% of homes with fibre connectivity in by 2014 is not a goal that has been envisaged as realistic before.

It is ambitious.

The initial step is a doubled of the Broadband Challenge Fund to $48 million, and there’s a very welcome commitment to “open access” (whether that means dark fibre or open access on the operator’s terms isn’t clear). There’s no indication as to whether National is talking about a monolithic FibreCo-style operator, or multiple providers whose interconnection is subject to regulation.

They are critical details, and that is why it is not planned any actual digging and laying will start until 2010. One has to get the structure and policy right and you really need time to do that. However while those details are being worked out there are things one can do in the very short-term which will make the task easier – such as ensuring duct or fibe is laid every time a current road is dug up. Some firm guidance (or instructions!) to local government can help reduce the cost a lot, as can environmental regulations.

What benefits would this massive investment bring over new DSL technologies via the existing residential copper network? For a start, it would work as advertised: 24Mbit/s DSL is more a theory than a reality for most users (although Telecom’s programme to bring the fibre closer via cabinetisation will help) and it’s extremely asymmetric — much fast down than back up. The problem of long cable runs basically disappears when you install fibre. You’d be doing it eventually anyway: when the existing copper expires, there’s no point in replacing it with more copper.

Absolutely. Fibre to the Home is inevitable. It is just a matter of timing – do we want to wait until 2040 and be last in the OECD, or try and secure some advantages by being early, to counteract our geographical disadvantage.

Russell also points some credit my way for “tireless advocacy”. While obviously I am an advocate, and have been for some time, I don’t think anyone should doubt this came about because of John Key’s personal belief and commitment to this infrastructure investment. I understand he has spent scores of hours in talks and discussions on the issue, and probably knows the ins and outs better than most industry specialists now.

Two others who are influential and helped make it happen were Maurice WIlliamson and Bill English. Jordan Carter has already noted Maurice’s passion for this plan. Bill has had a bit of stick for his comments a year ago which were sceptical of crown investment. The role of the Shadow Minister of Finance is to be sceptical and hard nosed on colleagues spending ambitions. I wouldn’t quite say his or her initial response should always be no, but hey it’s a reasonable negotiating position to start from

I am not Bill’s spokesperson (for which we are both grateful ) but I think people will find he is fully behind the initiative (in fact I understand all of Caucus is quite wildly enthusiastic about it) and his job is to help make it happen as Minister of Finance. If anyone thinks there is some violent behind the scenes struggle about this policy, I think they will be sadly disappointed.

Now of course not everyone has been positive, and for those who want a libertarian critique I refer you to Liberty Scott who labels it as Think Big Mark II and argues in favour of leaving it to the market.

Also against is NZ First (they just whine about Telecom) and Kiwiblogblog which claims it will be wasteful government spending as we will never need home Internet speeds faster than Telecom’s ADSL2+ rollout.

Sounds to me a bit like the infamous “640K ought to be enough for anybody” statement in 1981, attributed to (and denied by) Bill Gates. I am very confident they will be wrong by similar levels of magnitude!

UPDATE: The Standard has also come out against it.

I think it is has been extremely enlightening that basically all the left wing blogs where the authors use their real names have been supportive of the policy, while the left wing blogs where the authors are anonymous are against. I’ll leave it to others to draw conclusions on whether this is a coincidence or not, and what this may indicate about who the authors are.

UPDATE2: I missed a couple of comments. No Right Turn labels the policy as good at first glance. And since I wrote the blog post, Dancer at The Standard has labelled the policy as a good thing.

The Electoral Commission has decided that only natural persons (individuals) rather than legal persons (which includes organisations) can be found to be ineligible to be registered as third parties, and has approved the third party registration of the EPMU. This means that any person or persons, no matter their political involvement, can become a third party by forming an unincorporated society, a company, or an incorporated society.

Due to that decision, based on Crown Law advice, they have not made any decision on whether the EPMU is involved with administering the affairs of the Labour Party. My arguments on the issue are here.

I obviously think their decision is wrong, because it massively undermines one of the stated intentions of the Electoral Finance Act, which is to stop parallel campaigning. This has opened up huge loopholes, as both incorporated and unincorporated societies can now register as third parties regardless of their involvement in a political party.

ACT on Campus could arguably register now as a third party as one example. But it goes way beyond that. One could set up an unincorporated society called the National Future Club. Its membership could be the entire Board of Directors of National, and it could register as a third party and spend $120,000 on election ads (so long as they do not endorse a political party).

In fact just two people can form an unincorporated society. Helen Clark and Michael Cullen could form the Labour Leadership Society and that would be eligible to register as a third party under this ruling.

Another example is that the six Wellington candidates for National could form a group called “Wellington needs National”. That group could register and run a campaign attacking Labour’s politicisation of the public service, without it counting towards the spending cap of National, or of themselves as candidates. It could spend $120,000 campaigning against the Labour Party and its candidates ($4,000 cap per candidate) in Wellington.

So the ruling basically removes significant teeth from what was the stated main intention of the Act. I find it bizarre. I personally have no objection to the EPMU being able to campaign in election year. My target is the law, not the EPMU. I would in fact have no restrictions (except those of transparency) until the last 90 days. This decision will probably make things less transparent though as organisations (who do not have to reveal their membership publicly) will be formed to be able to register.

The ruling is based on an opinion from the Crown Law Office, which also famously declared that the original Electoral Finance Bill did not breach the Bill of Rights – an opinion very strongly disagreed with by the NZ Law Society and Human Rights Commission. I say this not to criticise them, but to point out their opinions are obviously not beyond dispute.

Ironically this takes us closer to the United States situation of campaign finance. Over there restrictions were put on how much could be donated and spent by political parties. This has seen the growth of 527s which can run their own campaigns, and much of the money has flowed to them. And which group was the (off memory) second largest 527 on the centre right side in 2004? It was the College Republicans who raised and spent US$13 million.

Even though I disagree with the decision, I make no suggestions of bad faith by the Electoral Commission in making their decision, and would ask others to refrain from doing so. But having said that, I am reserving the right to test this issue in court, because the electoral agencies do not always get it right. In fact the Tauranga electoral petition found several areas in which the official advice from the electoral agencies was wrong. So did the earlier Wairarapa electoral petition.

My thanks to the Electoral Commission for an advance copy of their decision.

The Electoral Commission will release next week its decision on whether the EPMU is eligible to be registered as a third party, under the Electoral Finance Act.

I have deliberately been refraining from comment on the substance of the arguments, as I don’t think it is a good look to be trying a case in the media, at the same time as a quasi-judicial body is determining the issue. But as they have now made their decision (just not released it), I think it is appropriate to  make public the points I have advocated, so that they can serve as background information for when the decision is released.

My original letter is here.

Over the break, is a copy of my follow-up letter. It speaks for itself, and I’ll comment further once the decision is known and made public.

(more…)

The Electoral Commission met yesterday and released some decisions, and is seeking further information on other cases. What literally had me bursting out with laughter was this statement:

The commission deferred consideration of whether a balloon bearing a party logo and website address was an election advertisement pending Crown Law advice

This is just too funny for words. Crown Law has to give advice on balloons!! Will they be researching overseas precedents concerning balloons? Will they look at other laws around the world which regulate balloons? I mean how will society cope without regulated balloons.

Will Crown Law blow up the balloon, and inspect it from all angles? Will the colour of the balloon be a factor? How about the shape of the balloon? And let us not forget size – at what point does a balloon become a blimp?

The Crown Law advice will normally be signed off by the Solicitor-General. An excellent use of time for the Government’s chief legal advisor!

Audrey Young had referred a number of taxpayer funded items to the Electoral Commission, including said ballons. In their response, they rule:

1. Labour broke the law with their “We’re making a difference” booklet as it an election advertisement and lacked an authorisation statement. This may mean that the cost of such booklet (despite being paid for by the taxpayer) should be included in Labour’s expenses return.
2. National’s Blue Green Vision did not break the law, as it was not an election advertisement.
3. ACT’s “Not your typical party” booklet is an election advertisement, but the lack of authorisation may not have broken the law as it is unsure whether distributing to journalists at a party conference counts as publishing it. Again, this suggests the cost of it should be included in their expense return (less of an issue for ACT as unlikely to reach the $2.4 m limit) unless it qualifies for the parliamentary purposes exemption.
4. The Labour Party balloon is having advice sought on it

The Electoral Commission decided not to ask the Police to prosecute Labour for their breach of the Electoral Finance Act, and to use it as an educational example. This is a reasonable decision. It does highlight however that Labour have basically broken their own law. They have also been breaking the law by using a non residential address in their authorisation statements.

The issue of the EPMU’s eligibility to be listed as a third party has been decided, but that decision will not be communicated until next week, after it has been written up in full.

Anyone visiting certain blogs on the left in the last few weeks may have noticed one of their 17,628 posts on their insistence that John Key has a secret master plan to lower wages in NZ. This is all based on a reporter’s notes of a conversation in a cafe (not a speech to a business audience as they stated) between Key and a Kerikeri business woman.

Now the newspaper in question has come out and said that if what Key had said left the impression he wanted to lower wages, that would be incorrect.

This of course has led to even more fanatical claims that this statement by the newspaper is something sinister – as if MPs have never ever complained before to a media outlet about a story which they think left the wrong impression.

Audrey Young blogs some perspective on the issue:

There is a certain amount of rubbish being pedalled by the Engineering Printing and Manufacturing Union about the Herald’s involvement in the saga over whether or not John Key told the Bay Report in Northland he wanted wages to drop.

What a surprise.

The Herald was actually first to cover the claims about the John Key and lower wages story after Labour had been on the case for a few days, and that was at the suggestion of the Herald editor.

Oh no there goes the conspiracy theory. Or perhaps the Editor was just trying to make up for 91 years of no charity

Something else to keep a little perspective on this saga – what was run today in the Bay Report itself was a “clarification”,not a correction or a retraction.

It would suit National, Labour and the EPMU if it were a correction, but any fair reading of the “Point of clarification” would see that the paper is not disowning the reporter’s transcript. It is is saying that if what Key had said left the impression he wanted to lower wages, that would be incorrect.

There is quite a difference.

“From an examination of the interview, and the context of the comments made by Mr Key in relaitons to the loss of skilled workers from New Zealand to Australia, the Bay Report now accepts that was not intended and that impression would be incorrect.”

It all comes down to an unclear context for the comments.

There wouldn’t be a journalist or news outlet in the country that has not been lobbied by politicians about a story they have taken exception to. Labour does it too.

I have it on very good authority that Broadcasting Minister Steve Maharey rang the chief executive of Radio New Zealand (yes, management) last year because he was so pissed off at an interview conducted by Sean Plunket.

And that really was naughty. And MP can complain to any media organisation about coverage they don’t like. Except the Broadcasting Minister should never be the person who personally rings the CEO of a public broadcaster the Minister is responsible for- if it deals with content of a news story.

UPDATE: The Dom Post covers the story. An extract:

“The approach was not in the form of a demand and no other requests were made. Following an examination of the transcript of the interview and the context of the comments made by Mr Key during the interview, the editor agreed readers may have gained an incorrect impression and a clarification was warranted,” Mr Simons said.

He said the wording of the clarification, published by the Bay Report, was edited in the normal manner by the editor of the newspaper.

“The wording was discussed and agreed prior to publication by the journalist who wrote the original piece and the subeditor who edited the story,” Mr Simons said.

An anonymous spokesperson for The Standard said that they would be issuing an apology for their 11,879 posts attacking Mr Key, now it is clear everyone agrees John Key does not want wages in NZ to drop.  However they said all the editors are out today skiing on Mt Hell skifield today, after an unusual freezing over the entire Hell region, so the apology will have to wait until they finish skiing.

The Herald’s editorial today refers to my questioning of the EPMU’s eligibility to be listed as a third party under the Electoral Finance Act:

There is delicious irony in the fact that one of the first victims of the Electoral Finance Act is a labour union. The Engineering, Printing and Manufacturing Union has been muzzled for two months while the Electoral Commission considers an objection to the union’s application for a right to advertise its views in election year.

The irony is no coincidence, of course; the objection has been filed by an opponent of the detestable act, website “blogger” David Farrar. He has no real objection to the union’s running political advertisements this year just as it has done in many previous election years. In fact, like all opponents of the act, he would probably say the union should have every right to exercise the same freedom it had before …

Mr Farrar has set out to make fun of the legislation and his objection has succeeded in that aim, whatever the commission’s ultimate ruling. It is ridiculous that there should need to be a regulatory assessment of the union’s ties to the Labour Party before it can do exactly as it has done in the months before previous elections …

But where, then, should the commission draw the line on who might be allowed to register as a “third party” under the act and advertise in a way that might tend to support a party or candidate standing at the election? Pity the commission; it has been handed this pointless, pin-pricking exercise only because the Labour Party lives in excessive fear of private money in politics …

It is entirely healthy that any organisation – industry association, trade union or religious sect – caring enough for a principle or policy to promote it to the electorate should be allowed to do so. Voters are not fools; money cannot speak louder than the merits of the message it is paying for.

We hope the EPMU receives permission to speak this year and we dare hope the challenge to its political rights has given the architects of the act cause to regret. The gag stands to earn considerably more ridicule before it ends at the election.

The Herald is quite correct that my motivation is not to prevent the EPMU from having a voice in election year.  However the issues I raised with the Electoral Commission are not frivolous or done just to delay the EPMU’s application. I have a genuine belief that they are clearly not eligible to register under the law. I would not have written to the Electoral Commission if I did not believe that the law as written means they are ineligible to be registered.

EPMU National Secretary has stuck with his original decision not to stand for Labour in 2008.

I am one of those who will not be surprised if Andrew is Prime Minister one day.  And if we have to have a Labour PM, he might not be a bad choice.

I think it is a sensible decision not to stand in 2008 – the worst possible time to enter Parliament is when your party is likely to go into Opposition.  The best time to enter is the election before when you head back into Government.

It’s pretty good news for Phil Goff also. If Labour lose in November, it is hard to see how anyone else can be a credible replacement for Clark. If Little had entered the caucus, then Clark might be tempted to stay on as leader for say 12 – 18 months, so that Little could them be a potential successor.

Matthew Hooton touches on the issue of whether the EPMU is eligible to register as a third party, in his column. I’m the person who has raised the issue of their eligibility with the Electoral Commission, so I won’t comment in detail on Matthew’s column, as (unlike the EPMU) I don’t believe I should be litigating the issue through the media at the same time as it is under consideration.

Matthew was also on radio this morning with Laila Harre and Kathryn Ryan discussing the polls.

Harre commented “This is very very bad for Labour … has a feel of 1990 about it … if they feel they can do business as usual they are wrong”.

Later on she said “The only thing that can save Labour is giving people a reason to vote for them … not dirty politics”

Matthew meanwhile said that if Labour had the rumoured neutron bomb, they need to drop it in the next week or so, as it will look too desperate and too late later in the year.

Also very interesting was the suggestion that the Greens could get 15% if they aggressively targeted Labour’s vote.