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Who advises the Electoral Commission?

  • February 28th, 2008

This Herald story raises the question - who advises the Commission? The politics of the adviser could make all the difference. Because with law so badly framed an agile adviser can construct a respectable argument to justify virtually any desired outcome.

And the story reminds me of the storm that will break on both the Commission, and the Chief Electoral Officer later this year. They’ll be asked to rule on ads and plans and articles and performances by candidates who fairly expect that they should be able to find out in advance whether their attempts to communicate with their fellow citizens could mean time in prison.

Candidates’ lawyers will say ” I’m sorry I can only guess – prosecution could be a matter of official whim, and conviction could depend on the judge’s feeling on the day”.

The agencies should be preparing. They’ll need more staff. I’m sure they’re working up guidelines. But they can’t imagine the variants they’ll be asked to rule on. They need a way to encourage people to approach them early and frankly.

They could kill two birds with one stone with a system of  “no action” letters. Such a letter says, in essence, “We can not tell you what the law is, and we can not stop action by third parties, but we can assure that we will not take enforcement action against you if you act in the way you have outlined to us, and you have told us the whole truth about it”

The SEC in the US uses them to ameliorate the unfairness of similarly vague and arbitrary rules (like, what is “unacceptable conduct”?).

To work properly the Police would need to be part of the system, because they are the enforcers at the request of the specialist agencies. The NZ Labour Party seem to have a standing “no action” letter from the the Police for electoral law offences, so extending the same comfort to  others should be no big ask.

Of course the Commission and the Chief Electoral Officer may need legal advice to tell them whether they have the power to bind themselves not to take action. Which takes us back to where we started. Who advises them? If it is the same Solicitor General’s office lawyer who told Parliament that the law does not infringe NZBORA, who knows what the advice might be.

Comments

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  • Michael
  • March 2nd, 2008
  • 3:47 pm

The major source of legal advice is obviously the Crown Law Office. But it’s probably not “the same Solicitor General’s office lawyer who told Parliament that the law does not infringe NZBORA” because, well, Ms Sim is now a Law Commissioner, and worked mostly in the Human Rights Team (not the Law Officer Team which provides advice to the electoral authorities). I suppose Justice McGechan, as President of the Electoral Commission might anticipate some input as well 🙂

“No action” letters seem unlikely, even if the Commission decided that could be its role, and got the police on board, they’d also need all the candidates on board too. Even if it could be guaranteed there wouldn’t be a prosecution, an electoral petition would remain a possibility. The trial of an electoral petition could just change the law (as the Peters v Clarkson petition did in a few respects – most notably by altering the long-held understanding over the apportionment of expenses that were partly electioneering and partly not) and “no action” letters wouldn’t be much help there.

You note that “conviction could depend on the judge’s feeling on the day”. Thankfully (I suppose) this seems unlikely – almost all the relevant offences in the Electoral Finance Act (i.e. excluding things like filing a late return) are purely indictable. Quite why it was considered that crimes carrying a maximum penalty of a $10,000 fine should only ever be heard by a jury, I don’t know, but that was the will of Parliament.

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  • Frank
  • April 25th, 2008
  • 11:52 am

The so called Police investigation into the Chief Electoral Officer’s complaint was referred to Dr A R Jack Chief Legal Adviser to the Police Commissioner and to Crown Law before the police advised they would not prosecute.

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