Electoral Finance Act repeal

Last week Radio NZ reported:

The Government has begun consulting political parties on an interim finance regime.

The promised before the election last year to repeal the controversial Electoral Finance Law passed in 2007 by the former Labour government.

A spokesperson for Justice Minister Simon Power says the Government is talking with other political parties ahead of drafting the interim regime, to be introduced to Parliament in February.

The Government aims to have it passed through Parliament before 26 February – the end of National's first 100 days in office.

Under the interim rules, only the section of the 2007 law relating to donations will be retained and relevant sections of the 1993 Electoral will be reinstated.

The spokesperson says the Government hopes to have new electoral finance laws in place before the next election.

There are two phases involved in changing our electoral laws. The first is a simple repeal of the Electoral Finance Act, to turn the law back to what it was. This repeal has an explicit election mandate and is a relatively simple law change. It is slightly more complicated by the fact the extra disclosure provisions around donations will be retained in the Electoral Act, but that means there can be no accusations that the EFA repeal is designed to allow large donations without transparencyin the interim.

The Government plans to do the first phase quickly, by the end of February. That suggests no select committee hearings.

That would be wrong if that was the end of the story. But it is not. Phase One is simply going back to the old accepted law. There is an explicit election mandate to do so. It is saying the starting point for future law changes should be the old accepted Electoral Act, instead of the Electoral Finance Act.

But Phase II is the critical phase. You see while the Electoral Finance Act was an abomination that should be be permanently reviled, the old Electoral Act is also a rather flawed Act. In fact the tragedy of the EFA is there were many worthwhile reforms they did not do. Labour just drafted a law designed to screw over its opponents and critics, and shattered the normal conventions around major changes. They also had no election mandate or even public policy process around drafting the law.

It is with Phase II that National must act with integrity, totally opposite to Labour. They need to ensure that both the public, and the other parties have meaningful input into electoral law changes. And it is important that there be both public consultation and multi-party consultation. Consulting with Phil , Norman and Jim Anderton is not a substitute for letting the public have their say – and I don't mean just a select committee submission once the law has been drafted.

What would I like in terms of public consultation? Well let's start with the fact we want any law probably passed by September 2010, so there is at least 90 days before it would come into effect in the year. That means that you would probably look to have a bill enter Parliament in early 2010. So in reality 2009 – this year – is the year that meaningful public consultation should occur on desirable law changes. How might these take place?

  1. Select Committee Review of 2008 election – this will happen automatically and will be a useful collecting point of all the complaints over the EFA.
  2. Issues Paper – ideally the Government would intially publish some sort of issues paper, and invite feedback on key issues. One might even have some seminars to discuss key issues.
  3. Options Papers – after an issues paper, you might have an options paper. This would set out some clear options for each of the major issues.
  4. Proposed Policy – then again in an ideal world the Government, after consulation with parties, would publish a proposed policy on which law changes would be made. This would allow people to clearly understand and comment on the likely shape of the law
After that, then one could introduce a bill to Parliament. It wouldn't mean that everyone agrees with every part of it, but that there are no surprises, and everyone has had a chance to have input. They would also of course be able to make a select committee submission.
Now the main problem with my “ideal” process above is it may take too long. A proper period for each distinct consultation can take months as you need time to draft the paper, to approve the paper, to allow comments and feedback on it, to summarise the feedback and then to make decisions on it to start the next consultation. So some phases may get merged together I guess.
Another unknown is whether the review will be just around electoral finance issues, or of the entire Electoral Act. I hope it is of the entire Electoral Act.  The Act is actually still an FPP Act modified for MMP. In an ideal world I'd like to rewrite it from first principles. But again probably too ambitious for 2011. Electoral law reform should be an ongoing but generally incremental process.
It is good Phil Goff has said he supports changes to the EFA. While there will always be disagreements on details of electoral law, it would be good if the bitter partisanship triggered by the outrage known as the EFA subsides. Who knows – one may even be able to get a unanamious vote in favour of its repeal as an interim step?

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