This post will be a bit difficult to follow, but it is an important one. It will show how the Government’s actions on this bill are those of naked self interest and to legalise their previously illegal actions.
It all revolves around Clauses 80(d) and 81(2)(g) which exempt from the definitions of party activities and party election expenses by stating:
does not include anything done in relation to a member of Parliament in his or her capacity as a member of Parliament
Now when I first read this, my interpretation was that Labour had done this so they could argue that anything paid for by The Parliamentary Service was exempt. The reason I suspected this was their motivation, is because Heather Simpson argued (incorrectly) that this was the law when they over-spent in 2005. And as we know, their companion law has now re-legalised their pledge card and similar activities as ok for taxpayer funding.
Labour broke the law in two ways in 2005. They over-spent under the Electoral Act, and illegally used taxpayer money on their election campaign. Changing one law without changing the other doesn’t help them much.
But they made one mistake. Instead of writing the law so it explicitly said that anything approved by the Parliamentary Service could not be considered an election expense (which would help get around the case law from the 1988 Wairarapa Electoral Petition), they just made it implicit. They did not want the public odium of stating their intentions quite so blatantly.
But they then struck a problem. The Electoral Commission said that they did not know what these clauses meant, and the credibility of the law was seriously threatened. So Annette King panicked and came up with a definition of what this clause is meant to cover. She said:
“MPs acting in their capacity as members of Parliament” excluded statements they made outside the House on policy that was intended to be enacted by a future Parliament.”
Now this satisfied the Electoral Commission. It drew a line which obviously excluded from the exemption things such as pledge cards. They withdrew their damaging objections.
But just because Annette King is Minister of Justice, doesn’t mean she can’t be over-ruled. Annette was summoned to the 9th floor and chastened by H2 no doubt. She was told that her definition was unacceptable and she was told she had to go and back down on her definition, even if it means humiliating herself. And so she did:
I want to mention clause 80(d), which covers a member acting in his or her capacity as a member of Parliament. The Electoral Commission has asked Parliament to give it some clarification as to how we interpret that. We are not going to put it in law; the commission has asked for an interpretation. That is what it has asked for—it wants an interpretation.
Well, I gave my view 2 weeks ago. I gave my view, and my view, I have to stress, is my view. But what the Electoral Commission is interested in is what this Parliament thinks, what the members of this Parliament think, and it wants to be guided. The Electoral Commission said that it wants to be guided by what this Parliament says. I am prepared to say that my interpretation could be wrong. I might be wrong. In fact, I am prepared to admit that I could be wrong. I read the comments of Bill English today in a question to the House. He might be right in terms of that interpretation.
Now my first reaction to this was Annette King was being incredibly stupid. In fact I yelled at the Hansard something alone the lines of “You stupid xxxxx, you are stating that the Electoral Commission wants to know what Parliament thinks, yet you are refusing to amend the law – which is the proper way to signal what Parliament thinks.” I thought how on earth can the Electoral Commission work out from all the different views expressed in the committee of the whole stage, what the intended interpretation should be.
But then upon talking to some MPs and lawyers, I became aware that there was method to her madness. They explained that courts, where statutes are unclear, may look at the Hansard to gain clarity on the intention of the law. And the one view they most take into account is the Minister’s.
So Annette King had no choice but to make herself seem like a blithering idiot (which she is not). She had to firstly state her previous opinion was wrong, and that she now has an open mind.
Then she needed a flunky Labour MP to put forward a view during the committee stage that the proper way to interpret these clauses was that anything authorised for payment by The Parliamentary Service was exempt as an election advertisement. And Charles Chauvel I am told did exactly that (Hansard not yet available).
So the final stage is for Annette King as Minister to place into Hansard what her view of Clause 80(d) now is. And I can guarantee you it will not be to stay with her previous definition. But instead she will say having listened to the many fine speeches, she has agreed with Mr Chauvel, and the intention of 80(d) is that anything approved by the Parliamentary Service means that it automatically can not be considered electioneering, and hence exempt from the spending caps.
This NZ Herald article makes it clear that King will give another interpretation of the clause before this bill is passed”.
King will do this either at the conclusion of the committee stage, or at the third reading. Once it is too late for people to object.
And they will have achieved their double goal. To allow their election campaign to both be funded by the taxpayer, and secondly not to count as an election expense.