EPMU’s third party eligibility

I blogged back on the 5th of February about the application from the EPMU to register as a third party.

In that post I mused about whether a future review of electoral law should look at whether an affiliated union’s election spending should be counted as part of a party’s, as they are so linked together. I didn’t at the time consider the issue of whether the EPMU was ineligible to be a third party under the Electoral Finance Act’s s13(2)(f)(i) which list sas ineligible “a person involved in the administration of the affairs of a party” as I was thinking of that applying to individuals who hold office within a party.

But that day a lawyer pointed out to me that the term “person” in law includes corporates, as it is only the term “natural person” which is restricted to individuals. Hence there was a real issue about the EPMU’s eligibility.

A reading of the Labour Party constitution found that the EPMU is eligible for representation on close to 100 Labour Party committees, and that every member of the EPMU automatically is a Labour Party member should they chose to exercise the right. To me this clearly made the EPMU a person involved in the administration of the affairs of a party.

Hence I wrote to the Electoral Commission setting out the arguments for why the EPMU is not eligible to be a third party (and remember i did not write the law – Labour did). They said they would consider the arguments and any response from the EPMU.

I was somewhat surprised to see an article quoting from my letter in the Dominion Post today. I haven’t spoken to the Dominion Post on the issue, and presume the EPMU leaked the letter and story.

I wasn’t planning to release my letter publicly until after there was a decision, but as it is the public domain, the letter is after the break. I think there is a compelling case under the law. The reported rebuttal from the EPMU seems fairly weak – arguing they are not a dominant force in Labour. Putting aside whether or not that characterisation is correct, the test in the law is not whether they are dominant. It is whether they are involved which is to my mind a much lower threshold.

It sounds like the Electoral Commission may not be able to make an immediate decision on the issue, as the new law has no precedent to go by and this is a test case.

Again I point out the obvious – if the EPMU is deemed ineligible to be a third party, and unable to campaign in the general election – it will be because of the way the law is drafted and because of the nature of their relationship with Labour as an affiliated member. A union which does not join a political party as an affiliate member would not have a problem being a registered third party.

7 February 2008

Dr Helena Catt
Chief Executive
Electoral Commission
PO Box 3050
Wellington

Dear Dr Catt,

I am writing to you regarding the NZ Amalgamated Engineering, Printing & Manufacturing Union’s (the EPMU) application to be registered as a third party. I believe that the EPMU is ineligible to be a third party under sub paragraph 13(2)(f)(i) of the Electoral Finance Act 2007.

I believe that the EPMU’s membership of and involvement with the New Zealand Labour Party mean that the EPMU is, to use the words of sub paragraph 13(2)(f)(i), “a person involved in the administration of the affairs of a party.”

As the Act refers to “a person”, not “a natural person”, this includes non-individuals.

To support this claim I would point to the following facts:

1. The EPMU is a member of, and affiliated to the New Zealand Labour Party. The New Zealand Labour Party Constitution (the Constitution) states that, “An affiliate of the Party is any Trade Union or other organisation which has applied for membership, subscribes to the Constitution and Policy of the New Zealand Labour Party, and had been approved by the New Zealand Council.” (Rule 44)

2. The organisations affiliated to the New Zealand Labour Party form an “Affiliates Council which meets regularly throughout the year and maintains a close liaison with members of Parliament through the Transport and Industrial Relations Caucus Committee.”

3. The Constitution states that all members of an affiliate are members of the party (Rule 5). Based on the membership records of unions held by the Department of Labour , the EPMU has 47,158 members. The Labour Party website only lists two other affiliated unions – the Service and Foodworkers Union with 23,057 members and the Dairy Workers Union with 6,980 members. Unless the Labour Party has greater than 17,000 non-affiliate members, then the EPMU represents over 50% of the membership of the New Zealand Labour Party.

4. The Constitution states that the New Zealand Council of the New Zealand Labour Party (the governing body of the New Zealand Labour Party) shall have as a member, “An Affiliate Vice President of the New Zealand Labour Party.” (Rule 136 (iv)). Currently this role is held by Andrew Little, National Secretary of the EPMU.

5. The Constitution ensures that the EPMU is represented on a number of committees charged with the administration of the New Zealand Labour Party’s business:

a. Affiliates are to be represented on Labour Electorate Committees (Rule 48).
b. Affiliates are to be represented on Labour Local Body Committees (Rule 84).
c. Affiliates are to be represented on Labour Regional Councils (Rule 110).
d. The EPMU is allowed (based on its membership) 96 delegates and votes to Labour Party Annual and Regional Conferences (Rule 163).
e. The EPMU are allowed up to seven delegates on every Labour Electorate Committee (Rule 171).
f. The EPMU is allowed to vote on regional representatives on the New Zealand Council (Rule 186).
g. Affiliates are able to select two members of the List Moderating Committee, and vote within their regions on the regional representatives on the same committee (Rule 273).

On the basis of the above facts I would put forth two arguments to support my belief that the EPMU is ineligible:

First of all the EPMU through its affiliation to the New Zealand Labour Party is heavily involved in the selection of electorate and list candidates for General Elections. This is achieved through the representation that they have in Labour Electorate Committees and the List Moderating Committee. They are therefore actively involved in the decision-making process over who will represent the New Zealand Labour Party in General Elections. I would argue that this means that they are involved in the administration of the primary function of political parties – the pursuit of electoral success on an electorate and national scale.

Secondly the EPMU is heavily involved in the administration of the New Zealand Labour Party as a whole and in particular the setting of policy and strategy. The National Secretary and public face of the EPMU, Andrew Little, sits as Affiliate Vice President on the governing body of the New Zealand Labour Party – the New Zealand Council. This means that the EPMU’s leader is actively involved in the policy and strategy formulation of the New Zealand Labour Party at a high level. The EPMU also has a large number of delegates to the Labour Party Annual and Regional Conferences. This means that the EPMU has a substantial portion of the vote at these conferences and so is able to use this sway to influence the membership of the New Zealand Council and the policy of the party through this means as well. The EPMU is therefore actively involved in the New Zealand Labour Party’s policy and strategy setting process – this is obviously also a very important role in the administration of the affairs of a party.

In fact it is hard to find any area of the party’s organisation and administration that the EPMU is not involved in. It is entitled to representation on almost 100 committees at every level from electorate to regional to national.

I believe that the facts that I have drawn your attention to and the arguments raised above lead to an inevitable conclusion that the EPMU is “a person involved in the administration of the affairs of a party.” I therefore suggest that under subsection 17(1)(c) the Electoral Commission is required to declare that it is not satisfied that the applicant is eligible to be a listed as a third party.

Should you wish to contact me regarding anything above then please do so. I fly out to India tomorrow morning for a week, but will be contactable on e-mail and by mobile phone.

Yours Sincerely,

David Farrar

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