SUBMISSION OF DAVID FARRAR TO THE
INQUIRY INTO THE 2011 GENERAL ELECTION BY THE JUSTICE & ELECTORAL SELECT COMMITTEE

About the Submitter

1. This submission is made by David Farrar in a personal capacity. I would like to appear before the Committee to speak to my submission.

Maori Roll Enrolment

2. The Electoral Commission has suggested that the “Maori option” be run not after each census, but in the lead up to each election. I strongly oppose changing the Maori option timing from after each census to before each election.
3. This would encourage tactical enrolments as if a particular seat (either general or Maori) is seen as marginal, parties will encourage their supporters to swap rolls to try and win the seat. This can happen under the status quo, but would be far more likely when the option to swap is done in an election year.
4. It would also upset the electoral populations. The option is run after every census, so that it can be used to determine electoral populations and hence boundaries. Allowing people to then swap rolls after the boundaries are set could cause some seats to have extremely low or extremely high electoral populations.

Election Day and Advance Voting Restrictions

5. The Electoral Commission recommends removal of the polling day exemptions for party lapel badges and ribbons and rosettes in party colours. I agree that rosettes and lapel badges could be banned, but would suggest that party scrutineers be given name badges to indicate they are scrutineers not officials.
6. However I would not remove the exemption for streamers and balloons in party colours. We do not need to have a balloon or ribbon police.
7. I also oppose the recommendation to prohibit election advertising within 100 metres of an advance voting place. It is unfair to a party or candidate that may have booked a billboard at a location near an advance voting place, but also is impractical. In theory even newspapers with ads in them would have to be removed within 100 metres of an advance voting place.
8. The likely growing popularity of advance voting, along with the advent of social media, makes the current laws on election day communications somewhat outdated. I suggest a first principles review is done of what harms these restrictions are designed to prevent (such as undue pressure on people as they are about to vote), and then decisions made on what is a sensible level of regulation to minimize or prevent these harms.

Electronic Voting

9. I note that it is proposed that some local Councils will trial e-voting for the 2013 local body elections, and then in 2016 possibly have e-voting available for all local body elections. If this is concluded sensibly, then it may be possible to look at an e-voting option for the 2017 or 2020 general election.
10. As an interim step, I support the Electoral Commission intention to allow overseas voters to deliver their votes to the Electoral Commission over the Internet.

Allocation of List MPs

11. I agree with the recommendation that the High Court should be able to direct the Electoral Commission to recalculate the allocation of list seats, as a result of a successful electoral petition.
12. It would also be sensible to allow the High Court to direct the Electoral Commission to recalculate the allocation of list seats as the result of a by-election held immediately after the general election as a result of a candidate dying. This removes the incentive for a party to put up a dying candidate in a “strategic” seat.

Election Returns

13. I agree that a party or candidate who refuses to file a return should be able to be prosecuted for a corrupt practice. This removes the incentive to file no return rather than a false return.
14. However I would go in the other direction for late returns, and make this a minor infringement that results in an automatic modest fine (like filing your tax return late). It is silly to involve the Police in such minor issues.

Broadcasting Act

15. I agree with the Electoral Commission that the definitions of election programmes and election advertisements in competing Acts should be harmonized. My preference would be to remove the electoral broadcasting sections from the Broadcasting Act, and have then in the Electoral Act.
16. I repeat my earlier submissions than the ban on political parties purchasing their own broadcasting time is outdated and an unjustified restriction of free speech. Worse, it means that different parties have different effective spending limits as a party allocated less broadcasting spend than another, is unable to close that gap.

Role of the Police

17. I have advocated for over six years that the Police should be removed from their current role of prosecuting electoral breaches. I am pleased to see the Electoral Commission effectively come to the same conclusion.
18. In 2005 their investigations of electoral law breaches was arguably incompetent. Extremely basic errors in law were made, where they ignored strict liability and confused the difference between spending limits and who can authorize and advertisement.
19. In both 2008 and 2011 they did not investigate alleged offences in a timely manner. In fact we still do not know their conclusions on offences they were referred to them almost a year ago. I do not blame them for prioritizing other crimes ahead of electoral offences, but it is wrong that there is no timely and effective enforcement of electoral law.
20. I propose that the Committee recommend to the Government that they agree in principle that the Police be removed as the enforcement agency for electoral law, and that they consult on the preferred replacement model.

Referenda

21. It seems silly that every time the Government and Parliament wants a referendum they have to pass a special Act of Parliament to hold it, and decide each time what spending and other restrictions are appropriate.
22. I support the creation of an Electoral Referendum Act that will set out the laws for all future referenda.
23. The ERA could supersede the CIR Act by specifying the two methods of triggering a referendum are by way of petition (the CIR route) or resolution of the House of Representatives.

Date of Election

24. The early announcement of the election date was very beneficial both for election administration, and for creating a level playing field for all parties.
25. Based on this success, I believe it would be beneficial for the date of the general election to be fixed as being the last Saturday in November.
26. If in future a Government feels it has lost the majority of the House, then it would be incumbent on the House to find a new Government which has its confidence.

Communications from MPs

27. A number of MPs were referred to the Police for unauthorized election advertisements. As MPs will be aware, the authorization requirements apply over the entire three year election cycle – not just in the regulated period.
28. It is useful to consider the reason we have authorization statements – to make clear who is behind an advertisement. It is a transparency requirement.
29. The nature of parliamentary communications is that some of them will always be political in nature and hence possibly an election advertisement. This means MPs at present need to either refer all communications to the Electoral Commission, or stick authorization statements on everything they publish.
30. I believe that a simple solution would be to amend the Electoral Act to state that outside the regulated period, any publication put out in the name of a Member of Parliament, is deemed to be authorized by that Member of Parliament and does not need a promoter statement.

Minor authorisation breaches

31. In many cases where there has been a referral to the Police for the lack of a promoter statement, the breach has been technical rather than substantive – the identity of the promoter has still been very clear. I believe this is very different to a case where advertisements are done anonymously in an attempt to hide their promoter.
32. It would be sensible to allow the Electoral Commission to levy a small infringement fine for minor breaches, rather than require it to be considered in details by a prosecutorial authority, and possibly waste court time.

Donations

33. The donations regime seems to generally be working well. However it would be a boost to transparency to lower the level at which donations must be disclosed within 10 days from $30,000 to $15,000 – which is the disclosure level for annual returns. This should simplify requirements for political parties, and allow scrutiny of significant donations in a more timely fashion.
34. Political parties are having to track any donation above $15,000 anyway, so reporting them as they occur should not pose any difficulty. Perhaps the requirement to report within 10 days could be altered to reporting monthly, say by the 20^th of each month for the previous month.
35. It could also be worth requiring near-instant disclosure (say within three working days) for the month before the election. In 2008 two parties received very large donations just before the election and did not disclose them until after the election.
36. I would also submit that the ability to make anonymous donations through the Electoral Commission should be removed. A donor can donate up to $15,000 a year without public disclosure, which is sufficient for those wishing to donate without publicity. I am skeptical that the identities of those who donate anonymously through the Electoral Commission are a total mystery to the recipient parties. While it is a much more rigorous regime than the Local Electoral Act, it is difficult to have confidence that the identity of the donor is not able to be logically deduced from previous conversations with a party.

Thank you for considering this submission, and I look forward to appearing.

David Farrar

Claire Trevett reports at NZ Herald:

Labour’s deputy leader Grant Robertson said Parliament should consider changing the process of dealing with electoral law breaches to speed it up – including giving the Electoral Commission powers to fine or penalise for some breaches.

Mr Robertson said the Electoral Commission was the expert body on electoral law, yet it had to send any breaches to Police to decide whether to act on them.

I’ve been advocating this for years, including in submission to select committees. Sadly, Labour never voted in favour of changing the law.

While their sudden enthusiasm to do so, seems rather opportunistic, it is the right thing to do.

“The bigger issue is the number of complaints they’ve sent to the Police that nothing has happened with. So maybe there is another way. For instance, could you set a threshold under which the Electoral Commission was able to impose some sort of penalty rather than have to have Police prosecute it.”

Time and time again the Police have shown, with all due respect, a total disinterest in enforcing electoral law (the most notorious case being the non charging of Labour over their $400,000 deliberate over-spend in 2005). They would obviously rather be catching muggers  etc.

Even worse, the Police seem to have a deliberate policy to not decide on any complaints until after the election. They see this as not interfering with the election, but it is in fact a worse form of interference. It means parties and candidates and others can breach electoral laws, and not have to worry about the stigma of being charged prior to the election. This encourages rule breaking.

I will once again be submitting to change the law to the 2011 election review later this year. I look forward to Labour voting for removing the Police from any role in electoral law enforcement, and other parties doing the same.

What should happen is that the Electoral Commission itself can levy small fines for relatively minor issues such as late returns and the like, or missing promoter statements on ads that still have a clear author. For more major issues they should be able to lay charges directly with the courts.

The Electoral Commission has also announced:

TVNZ OneNews coverage before 7pm on 26 November 2011.  It is the Electoral Commission’s view that the broadcast breached section 197(1)(g)(i) of the Electoral Act 1993 because it included statements that were likely to influence any elector as to the party for whom the elector should or should not vote.

I didn’t see the news that night (mainly because I was actually at TVNZ getting ready for the election broadcast) so can’t recall what they broadcast, which has triggered this referral.

It will be interesting to see the details of the material complained about, once it is made public.

The Electoral Commission has announced:

On 18 November 2011, the Electoral Commission referred Jolyon White to the Police for sticker advertisements attached to National Party billboards.

It is the Electoral Commission’s view that the publication of each of these advertisements constitutes a breach of sections 204F of the Electoral Act 1993 because they are election advertisements that do not contain a valid promoter statement.

Readers will recall Labour’s Electoral Finance Act, and how they rammed it through Parliament despite massive opposition. This shattered decades of rough bipartisan consensus that significant electoral law changes should be decided by either the public, or with support from (at least) both major parties. The Electoral Act is not meant to be the ultimate prize for the winner, where they get to rewrite the rules in their favour.

Hence Simon Power gave Labour a veto over the changes to electoral finance laws. He allowed them to veto reform of the broadcasting restrictions. He went even further than that, and reintroduced third party spending limits, despite the opposition of his own party. He did this with the most noble of motives – to remove electoral law from partisan gerrymandering.

Today Phil Goff shattered that. Radio NZ reports:

“People see a system being rorted, but my advice is that if we vote for MMP, then it will be reviewed.

“If there’s a Labour Government, we’ll take that rort out the system. You’ll have to get five percent to get more seats than simply the electorate seat that you win – that stops the rort.”

Simon Power set up a review of MMP, in case it wins. Phil Goff has just announced that Labour will remove the electorate threshold regardless of what the independent review by the Electoral Commission recommends.

There is a legitimate debate to be had about the threshold, and if MMP is retained the independent review is where that debate should occur. But let us not pretend, this is about any high minded principle. Labour want to legislate away their opponents. Their motivation is to change electoral law, so they will get to form Government more often.

By announcing unilaterally what would happen if Labour is in Government, Phil Goff has shattered the hard won agreement Simon Power achieved that significant electoral law changes should have bipartisan support. Goff has shown that if Labour forms Government, they will make partisan changes to the Electoral Act, to help Labour retain power. They have learnt nothing from the Electoral Finance Act.

This is not about ACT. This is not about whether or not the one seat threshold is or is not a good idea. This is about Phil Goff pledging to ignore the independent review and to use the Electoral Act to favour Labour electorally.

It was a Labour/Green/NZ First voting bloc that gave the Electoral Finance Act. God knows, what they will do if they get to form Government.

For the geeks, Graeme Edgeler asks and answers them. I like this one.

Well, how would you surreptitiously distort an election?

Nominations having closed, I don’t feel too bad announcing this one more broadly now.

My favoured method involves getting a terminally ill person (perhaps more than one, just to be “safe”), to run in the anchor electorate of a sub-5% party (e.g. Epsom). If an electorate candidate (even an independent) dies between the close of nominations, and the close of voting, the election for that electorate is cancelled (resulting in a by-election), and only the party votes count. That seat couldn’t then be used to get that party (e.g. ACT) into parliament by avoiding the 5% threshold, potentially swinging a close election. And as that person doesn’t need to have any formal affiliation to a party (they might claim to be doing it as a stunt to raise awareness about some aspect of the health system), you might be able to get away with it.

This is a rule we really don’t need, and I’m guessing it’s a hangover from first past the post. Which, to be honest, doesn’t need it either. Given that you’re having an election anyway, let people vote, and if the dead candidate wins, then have a by-election.

I tend to agree. If the US can elect dead politicians, so can we.

When I saw that the Electoral Commission had referred Jim Anderton to the Police, I remarked to a couple of people that I was sure he would have a fit and attack the Electoral Commission. I was right. The Herald reports:

Progressive leader Jim Anderton has launched an extraordinary attack on the Electoral Commission for referring him to police for a possible breach of the Electoral Act. …

But Mr Anderton, who was referred to police over election advertising before the 2008 election, said he had done nothing wrong.

Jim thinks he has never done anything wrong in his life. His valedictory was full of how he was right and everyone else had been wrong. If you ask him hig biggest mistake, he will be stumped for an answer.

“I’m authorised to send my constituents any message I damn well like. This is my electorate.

First of all don’t you like how he refers to them as possessions.

Secondly he was not writing to them in his capacity as an MP for parliamentary purposes. He was writing to them to tell them to vote for Megan Woods. Even the thickest of MPs should have learnt by now that telling people who to vote for is not a parliamentary purpose.

Thirdly, MPs are not above the law. He is not a King or a God. He is merely an MP. That doesn’t mean he can do anything he damn well likes.

His arrogance is the same as that which destroyed the Alliance. He demanded the party members surrender total control of the organisation to him, and effectively make him dictator. They refused, so he left.

“And if the Commission wants to start stopping electorate MPs from communicating with their electorate, they’d better get prepared for a breach of privilege complaint, because that’s what it amounts to.

Oh I so hope he tries that – it would be most amusing. In reality all he is trying to do is bully neutral public servants and have them exempt him from the law.

They are interfering with the regular work of an MP.”

It is not the regular work of an MP to write to voters and tell them who to vote for. That is the role of parties and candidates.

“They have a few things like rape and pillage going on around the country, and this is simply ridiculous to tie up senior members of the police force with this kind of garbage.”

In Jim’s world, electoral law breaches are not an offence. I suspect Labour agrees with him.

Mr Anderton said the letter was sent outside the regulated period under the Electoral Act, but the commission referred it to police on the basis that the letter was not properly authorised.

The regulated period has nothing to do with this. In fact, the law for around 20 years has been the same in terms of requiring authorisation.

Idiot/Savant at No Right Turn comments:

Yesterday, I was willing to attribute Anderton’s crime to (unforgivable) ignorance. Today, its clear that its one of arrogance. And he needs to be held to account for it.

Dead right.

Jim Anderton has been referred to the Police, for his letter to all voters in Wigram urging them to vote for Labour’s Megan Woods.

The Electoral Commission has ruled on a complaint from Cameron Slater that Jim Anderton is ineligible to be a promoter of a candidate advertisement, as he is a party leader. He did not register as a promoter, and someone involved in the administration of the affairs of a registered party is ineligible to be a unregistered promoter.

This could be quite a lot more serious that the normal referral for forgetting to put an authorisation statement on an advertisement. There are two reasons this is much more serious:

1. Jim Anderton has done something he was not allowed to do under the law.
2. This was not an obscure ad on Facebook or in a school newsletter, but a letter sent to every voter in the electorate

Sadly we will not know before the election the outcomes of any of the complaints to the Police. In what appears to be a fit of cowardice, it seems they have a policy that they will not decide on any prosecutions until after the election. This is massively wrong, and actually encourages law breaking.

Katie Chapman at Stuff reports:

National MP Michael Woodhouse could be fined up to $40,000 after he allegedly broke election campaign rules.

The party’s campaign manager Jo de Joux confirmed Woodhouse, who is the Dunedin MP, was being dealt with by police after a complaint was received regarding two advertisements that did not carry promoter statements.

Everything a candidate puts out should pretty much have an authorisation statement. Could be an expensive lesson. The likely fine, if changed and found guilty, is a few hundred dollars.

Whale blogged last week about a pamphlet being put around Epsom by Young Labour. It is authorised by Levi Joule, the Auckland Regional Chair for Young Labour.

The Herald notes:

Mr Banks also refused to comment on the leaflets, one of which presented a derogatory comment he made about Pacific Islanders in 1978 as if it were made last year.

The pamphlet is so deceptive in suggesting the comment was made in 2010, rather than 33 years ago, that Mr Joule should be very careful. If that pamphlet is distributed within two days of the election, then s199A may apply:

Every person is guilty of a corrupt practice who, with the intention of influencing the vote of any elector, at any time on polling day before the close of the poll, or at any time on any of the 2 days immediately preceding polling day, publishes, distributes, broadcasts, or exhibits, or causes to be published, distributed, broadcast, or exhibited, in or in view of any public place a statement of fact that the person knows is false in a material particular.

Now we are talking a corrupt practice, not an illegal practice. That can mean some serious jail time. I think there is a very arguable case that the pamphlet is fake in a material particular, namely that it makes it looks like the quote was made in 2010, not 1978. It is an obvious deliberate stragey to deceive, as they could have supplied the refernce of when the quote was made, not when it was re-reported.

Voters will make up their own mind on the pamphlets. The Herald story states:

Yesterday, Mr Parker said he had nothing to do with the pamphlet, but he believed it was fair for Mr Banks to be held accountable for the comments now as they were “part of his political life”.

Really? The Auckland Chair (or rep on their National executive) of Young Labour would stick up these pamphlets without the local candidate’s knowledge? Is that bridge still for sale?

There is another interesting aspect to this. You see Mr Joule is not a registered promoter for the election and he is promoting an election advertisement. Now that is fine if he is an unregistered promoter and spends less than $12,000. However certain people can not be unregistered promoters, including:

a person involved in the administration of the affairs of a party

Now the question is, does being on the national executive of Young Labour make him someone who is involved in the administration of the affairs of Labour? If so, then he is already in trouble.

Finally I wonder what would be the reaction of Labour if someone dug up quotes from say Phil Goff in 1978, and stuck up pamphlets and posters which made it look like he said them in 2010, rather than 1978? I think they would rightly cry foul, but they are happy for Young Labour to do it on their behalf. A reminder of why they got kicked out in 2008.

The NZ Herald reports:

Former rugby and rugby league star Matthew Ridge could face prosecution and a fine of up to $10,000 for advertising his Greenlane car wash company with a mock election advertisement.

The billboard features a picture of Ridge, an All Black who later captained the Kiwis, and uses a play on words to promote the hand-washing car service: “Say no to Labour – We’ll hand wash your car for $15″.

Ridge says it’s just a play on words and he isn’t standing for Parliament.

But Chief Electoral Officer Robert Peden says it meets the definition of an election advertisement under the Electoral Act and must have a promoter statement. The Electoral Commission also wants to know whether the advertising campaign will run to more than $12,000 because if it does, the promoter of the ad would have to register as a third party.

The Commission is correct of course they the billboard does need a promoter statement, even though the intent is not political. It is the impact that counts.

Ridge said yesterday the ad was just a parody. “It’s just a bit of fun. I think anybody that’s got half a brain will see that ‘hey look, it’s tongue-in-cheek’.”

He said it wasn’t meant to be “Don’t vote for Labour” though he added that if it doubled as that he would be quite happy “because I wouldn’t vote for Labour anyway”.

Heh.

My column at the NZ Herald is about how today is the start of the Taxpayer Relief Regulated Period.

We are now officially within three months of the general election. Today is the start of what the law calls the regulated period. It restricts how much money political parties can spend of their own money on election advertising, but more popularly cuts off taxpayer funded election advertisements from MPs. …

So if from today you see anything from your MP or from a parliamentary party that has the crest of the House of Representatives on it (indicating Parliament has paid for it), and it is advocating either explicitly or implicitly for or against a party or candidate, then you should send a copy of it to the New Zealand Herald who I am sure will happily inquire to the Parliamentary Service whether the taxpayer is due any refunds.

Only 13 weeks to go until E-day!

The Electoral Commission has announced:

On 15 August 2011, the Electoral Commission referred the following matters to Police:

• Charles Chauvel MP, Ohariu Census,
• ACT Party newspaper advertisements in Sunday Star Times and NZ Herald
• Labour Party ‘Prices are Rising Faster than Wages’ flyer.

It is the Electoral Commission’s view that the publication of each of these items constitutes a breach of sections 204F and 204H of the Electoral Act 1993 because the items are election advertisements that do not contain a valid promoter statement and were not authorised in writing by the party secretary.

This isn’t rocket science. The requirement for a promoter statement has been a core part of our electoral law since 1977, and something every party should be complying with out of habit. Failing to do so is a basic failure of political competence. After all, if you can’t publish a fucking ad properly, how do you expect us to believe you can run the country? Sadly, I don’t think Labour will acknowledge that failure and commit to fixing it. Based on their past performance, we’ll be treated to more arrogant whining instead.

The Electoral Commission have stated that the unauthorised “prices are rising faster than wages” flyer is an election advertisement, and in their view is in breach of the Electoral Act. Labour has been referred to the Police again also.

Whale shows the importance of actually filing complaints over illegal material.

Damien O’Connor blogs at Red Alert:

I thought we lived in a free democracy. Since when did a sign become illegal when expressing an opinion or encouraging people to act? Does this ban all signs at marches that may in any way be linked to a movement or political party. The EC needs to pull their heads in. This is not the 1930s in Europe.

And Clare Curran chips in:

Hope the Electoral Commission is reading this. Is this what our democracy has come to?

I agree with you Damien

So Labour equate being forced to obey the electoral laws, as akin to Nazi Germany.  The sad thing is that they have got so used to being above the law, that they really do think it appalling that an independent agency will not kowtow to them. In fact the post is a barely veiled threat against the Electoral Commission.

What is especially ironic is that Damien voted for the Electoral Finance Act which would had far more restrictive laws, than the current Electoral Act.

Also in case people think Labour is right, and you can no longer wave a sign at a march – this is not the case. The only requirement is that the sign have an authorisation statement on it, if it can be considered an election advertisment. And this has in fact been the law for the last 15 years or so.

So what Damien is really complaining about is transparency. Transparency is what he compares to Nazi Germany.

As if one needed another reason why Labour is unfit for office, this is it.

Stuff reports:

A file containing details of Labour’s alleged breach of election advertising laws has now gone to police.

A spokesman for the police confirmed they received the dossier, from the Electoral Commission this morning.

”It will be assessed to establish the validity of the complaint and determine how we proceed from here,” the spokesman said. …

The Commission alerted police and Labour on Friday that they believed election advertising rules, which were tightened last year, were broken.

A full file of their findings has now gone to police.

Labour leader Phil Goff yesterday said people working on the literature didn’t pick up the law changes.

”We’ve expressed our regret, that won’t happen again.”

I’ve said this before – the need to have your ads authorised has not changed. This is a red herring. Labour’s ad would have been in breach of the pre-EFA Electoral Act, the Electoral Finance Act and the current Electoral Act.

The issue is that Labour have had a belief since 2005 that if it is taxpayer funded, it does not need an authorisation statement. This has never been correct, and they have been told numerous times it is not correct.

So in summary the law has not changed. The problem is that Labour’s attitude to the law has not changed either.

Today’s Dom Post editorial:

Politicians are not above the law.

They should not seek to be. For the third time in six years the Labour Party has been found to have breached the rules governing election advertising. The Electoral Commission has referred the matter to police. They should prosecute.

The breach is not as serious, or wilful, as Labour’s 2005 misuse of $824,000 of public money to subsidise its election campaign.

Certainly not as serious, but arguably more wilful. In 2005 they could claim they honestly thought that anything paid for by Parliament was not an election expense. In 2011, there is no way they could genuinely hold that view.

It would appear that the only way to convince Labour politicians they too must operate within the law is to hold them to account when they fail to do so. In 2005 police mystifyingly opted not to prosecute prime minister Helen Clark’s chief of staff, Heather Simpson, for exceeding Labour’ election spending limit, despite receiving legal advice that a prosecution would result in a conviction.

I blogged at length on the 2005 investigation. I found a degree of incompetence that was disturbing. The Police in fact investigated the wrong offence and didn’t even understand concepts such as strict liability. They have a chance to redeem themselves now.

The latest offence is similar. Labour campaign spokesman Grant Robertson has attributed it to a difference of opinion between the party and the commission over what constitutes advertising. Labour did not consider the postcard advertising, in part because it had received prior authorisation from the Parliamentary Service, he said. That is an irrelevance as Mr Robertson, a bright, capable new MP of whom his party has high hopes, should know.

Grant would indeed know this. All MPs should know this. It has been made clear by the Electoral Commission.

That role is filled by the Electoral Commission which offers any individual or organisation seeking to produce electioneering material an opportunity to have it vetted in advance.

To find out whether its postcard complied with the law Labour had only to submit it to the commission. It did not do so.

And this is why it had to be referred to the Police. Labour had a chance to get an opinion on it, and simply decided not to.

The lessons of the past have not been learnt. It is time for them to be reinforced.

It is bad enough that the public’s hard-earned money gets squandered on political bumf by all parties. It is even worse that Labour cannot be bothered complying with the rules when it does so. It has trifled with the law long enough. It should be stopped.

The question for the Police should be what message will it send out if they do not prosecute? I believe it will mean that the Electoral Commission will be a lame duck, if the Police take no action.

The challenge for the Police may be in deciding whom to prosecute, as it must be an individual, not a party. But a proper investigation should establish who in Labour made the decision to publish them and not seek an opinion from the Electoral Commission.

Labour says:

The Electoral Commission advised the Labour Party late yesterday that it believes the party breached the recently-amended Electoral Act over the party’s Stop Asset Sales Flyer, says Labour spokesperson Grant Robertson.

This is no surprise. It was an obvious election advertisement. It is important to realise that it would also have been deemed an election advertisement under the Electoral Finance Act and the pre-EFA Electoral Act.

Grant Robertson says there is no suggestion Labour has breached the use of Parliamentary resources or taxpayer funding, but the Commission is concerned that the words “authorised by” were not included in an explicit promoter statement.

A red herring. The Electoral Commission is concerned with the Electoral Act, not parliamentary funding. It is correct that up until 26 August the ad can be funded out of Labour’s parliamentary budget, but that is not the issue.

“Labour had taken the view that the flyer was not an election advertisement under the Act, in part because it had received prior authorization from the Parliamentary Service for its publication”, Grant Robertson said.

I’m sorry but this is just bullshit, and it is the same bullshit Labour have pushed since 2005. In 2005 Labour justified their over-spending by claiming they thought the law meant if it was taxpayer funded it was not an election advertisement. They were wrong then, and they were wrong now. But this is not a mistake, made in ignorance. They have been told dozens of times this is not the law. They had MPs sit on the select committee that considered the law. The Electoral Commission has stated in big bold letters multiple times that something may be an election advertisement even if taxpayer funded.

So this is not an accidental breach of the law. This is a continuation of six years of arrogance that they are above the law. Look the breach is a minor one, but the principle is an important one.

The new law even allows a party to get an opinion from the Electoral Commission on whether a particular advertisement is an election advertisement and needs authorisation. This is a free service. Labour chose not to get an opinion and chose to break the law.

This is why the Police should finally do something they have never ever done before – and prosecute Labour for one of the electoral law breaches. It is a minor breach and it should be a fine only, but how on earth can you expect others to obey the law when Labour consistently get away with breaking it.

Whale Oil quotes Newstalk ZB:

“It’s given an advi­sory opin­ion a “Stop Asset Sales” flyer is a party adver­tise­ment and doesn’t sat­isfy statu­tory require­ments for a pro­moter state­ment  …  Although the flyer does con­tain Phil Goff’s name and Par­lia­ment Build­ings as his address, the Com­mis­sion advises that doesn’t sat­isfy statu­tory require­ments … The Com­mis­sion is con­sid­er­ing whether this is seri­ous enough to report to police.”

Labour have a long history of breaking and ignoring electoral law, back to 2005 when they deliberately over-spent by $400,000 despite multiple warnings.

Even a defence of honest different opinion is not much of a defence, as the new law allows a party or MP to take a proposed advertisement to the Electoral Commission to get an advisory opinion on whether it constitutes an advertisement and complies with the law.

All Labour had to do was to take their draft advertisement to the Electoral Commission, before printing them, to check they comply. They chose not to do so until after they printed them.

This advertisement appeared in a Grey Power magazine. In scanning it the e-mail address phil.goff@parliament.govt.nz got obscured, after the phone number.

Now we know from the minutes Whale published, that Labur have been instructed to use parliamentary service resources to benefit Labour, and this ad is funded by Parliament.

Now up until the regulated period starts on 26 August, this ad can be funded form Labour’s parliamentary budget as it does not explicitly call for votes, money or members. However my recollection is the rules are the party logo must be the same size as the parliamentary crest, and clearly in this ad it is way way larger, and appears twice.

So Labour may have broken PS rules (unless they have amended the rule about logo size) in this advertisement. However it could be worse. They may have broken the Electoral Act because there is no authorised by promoter statement.

The Electoral Commission has just this month published a booklet with guidance for MPs. They stress that even taxpayer funded advertisements need an authorisation statement if they can be “reasonably regarded as encouraging or persuading voters to vote or not vote for a party”.

In their official guide, the Commission notes a factor that may indicate if an advertisement is an election advertisement is “references to a party’s election policy or what they will do if re-elected”.

Look at the ad and the part that says “Under Labour there will be no asset sales”. Bingo.

The ad is very clearly designed to encourage people to vote Labour. That means it should have an authorisation statement with a name and address.

Well that didn’t take long. I blogged about the ads yesterday and today they are gone. Andrea Vance at Stiff reports:

The Green Party has pulled “Gone Off Phil Goff?” ads – and apologised to the Labour leader.

The online notices were placed this week but were not authorised by the party, which was alerted to them via social media.

Although the Greens would like to attract disillusioned Labour voters, co-leader Metiria Turei said earlier this month that it would support a Labour-led government following the November 26 election.

Green Party co-leader Russel Norman said the ads were placed as an “experiment” by a member of the party’s campaign team. He apologised to Mr Goff.

The ads were up for “a day or so”, he said.

“It was a very small-scale experiment by a member of our campaign team that actually wasn’t authorised.

 If the advertisements were not authorised by the party, then the team member who placed them has committed an offence under the Electoral Act. I hope the Electoral Commission will investigate, as it is a serious offence to place an ad on behalf f a party without authorisation.

The advertisement also did not appear to have an authorisation statement, which is potentially a seperate offence also.

Kate Chapman at Stuff reports:

Social media will play a big part in the election campaign this year, but MPs and their supporters are being warned not to send messages using Twitter on election day. …

The commission would be making use of social media to promote the election, but would also be monitoring it to ensure people were following the law.

Electioneering on election day is an offence under the Electoral Act, with fines of up to $20,000.

“Tweeting, like any form of communication with the public where you are seeking to influence, is a breach of the act [if done on election day],” Mr Peden said.

Action would be taken against people caught sending tweets aimed at influencing voters on election day.

It is no surprise that the same rules apply to Twitter, as to any other medium.  The rules are in s127 of the Electoral Act, specifically s217(1)(g)(i) and (iv).

at any time on polling day before the close of the poll exhibits in or in view of any public place, or publishes, or distributes, or broadcasts
(i) any statement advising or intended or likely to influence any elector as to the candidate or party for whom the elector should or should not vote; or
(iv) any party name, emblem, slogan, or logo; or

So even mentioning the name of a party on Twitter on election day could be a breach. I doubt action would be taken unless it was in the context of the election.

Of course not everyone on Twitter uses their real name, or has contact details, so any enforcement action could prove problematic.

Some of the reporting around how a list vacancy is filled, has been a bit mixed – referring to party’s constitutions, rather than the Electoral Act. Here’s how it will work:

1. Speaker receives resignation of List MP and publishes it in the Gazette – s134(1)
2. Governor-General instructs the Electoral Commission to supply the vacancy – s134(2)
3. Electoral Commission determines which “unelected candidate” was ranked highest on the Labour list, which is Judith Tizard – s137(2)
4. Electoral Commission checks if they are still alive
5. Electoral Commission checks with the Secretary of the Labour Party that the candidate is still a member – s137(3)
6. Electoral Commission checks with the candidate is they are willing to become a Member of Parliament – s137(4)
7. If the candidate is dead, not a member or declines, then repeat steps 3 to 6 for the next person on the list – s137(5)
8. If the candidate is alive, still a member and accepts then they notify that candidate’s election in the Gazette – s137(4)
9. If for some reasons, no list candidate is eligible or accepts, then that seat is left vacant until the election – s137(6)

We don’t know if Darren has already sent his resignation into Lockwood Smith, or is holding off doing so until it is clear who will replace him. If he has already resign then those on the list may need to make their mind up very quickly – even by end of Monday.

The law is unclear about what would happen if a candidate was undecided. I guess they’d probably give them a small amount of time to decide, but ultimately a lack of an assent would be taken as declining the seat, as the xact wording is:

If that candidate is still alive and remains a member of that political party, the Electoral Commission must then inquire of that candidate whether that candidate is willing to be a member of Parliament, and if that candidate so indicates his or her willingness, the Electoral Commission must declare that person to be elected by notifying the person’s election in the Gazette.

and

If that person has died or is no longer a member of the political party or does not signify his or her willingness to be a member of Parliament, the Electoral Commission must proceed to make the inquiries described in subsections (3) and (4) in respect of the following candidate in order of preference on the party list

So a “I don’t know” would not qualify as signifying willingness, and it would drop to the next person.

The Dom Post editorial:

Four year after being caught with their fingers in the parliamentary cookie jar, politicians are finally putting their affairs in order.

A parliamentary select committee has agreed to redefine the legal meaning of electioneering to make it clear that public funds cannot be used for pledge cards and other campaign material.

This is the good bit. The rules about what can be funded out of parliamentary budgets will be tighter than ever before, during the regulated period.

The change is contained in the bill that replaces the odious Electoral Finance Act – Labour’s attempt to tilt the electoral playing field in its favour by restricting the rights of its critics to express themselves in election year.

The new bill loosens the restrictions but, regrettably, does not remove them. Justice Minister Simon Power has put broad parliamentary consensus ahead of his National colleagues’ views, who loudly opposed any restriction on free speech when Labour and its allies pushed the Electoral Finance Bill through in 2007.

Labour have basically got the law they wanted.

Labour and the Greens argue that the cap is necessary to prevent wealthy interests “buying” elections. However, that could have been achieved without compromising free speech simply by requiring those who want to spend large amounts of money broadcasting their views to disclose their identities – something the new bill already requires them to do.

Voters are not stupid. If they know who is paying for advertising campaigns, they know whose interests are being served.

Indeed, and the 2010 US elections clearly showed you can not buy an election. Meg Whitman spent almost $200m on her bid to be Governor of California and she lost by a massive 14%.

Mr Power has also balked at reforming the broadcasting regime that unfairly advantages incumbent parties and politicians for the same reason.

He could not gain widespread parliamentary support for changes to the system, which gives the major parties the lion’s share of broadcasting funds and prohibits their opponents from buying TV and radio time with their own money.

Here is what annoys me. That Labour were both allowed to veto changes to the broadcasting regime, and were also allowed to get third party spending restrictions put in place, despite National opposition. What did National get in return – a miserly $5,000 extra per electorate spending.

The principle underlying the new legislation should have been transparency. Sunlight is the best protection against the buying and selling of influence.

Mr Power’s bill falls well short of the ideal, but it is still a quantum improvement on its Labour predecessor.

I agree.

The NZ Herald editorial:

Three years after the outcry at financial restrictions on independent electoral advertising, the Labour Party has got its way. National has folded on an issue it fought from Opposition, agreeing to restrictions that differ only by degree with the spending limits legislated by the Labour Government. …

National has surrendered to the left’s fear of money, which is just one possible influence among many in an election. Its bipartisan fix will leave our politics poorer and preserve elections largely for the parties who have conspired to produce this disgraceful discouraging law.

Again I encourage National Party members to speak up on this law. Bring the topic up at monthly electorate meetings with MPs. Ask your regional chairs and board members what their views on the law is, and will they do to represent the views of members on this issue. Consider moving a resolution at Regional Council meetings reaffirming National’s opposition to having the Government restrict the ability of “third parties” to spend their own money criticising parties, candidates and policies they don’t like.

I recognise that the law change has been agreed to, and will occur. You may wonder then what is the point of protesting – is it just to be destructive? No, the idea is to provide an incentive for this not to happen again in future, where the parliamentary wing agrees to something that National campaigned against so strongly. Unless MPs hear the voices of party members on this issue, then the party becomes marginalised.

Remember that the EFA had already been repealed (with Labour’s support) soon after the election. The bill that entered Parliament did not have restrictions on third party spending in it. National was not forced to agree to it, to get the law passed. It chose to do so.