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:
- A ruling that the Attorney-General was wrong when he said the Electoral Finance Bill did not breach the Bill of Rights.
- 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.