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DPF’s lawyers and the EFB

  • November 22nd, 2007

The puerile scuffles of the kiwiblog commentariat diminish kiwiblog. If DPF will not simply scrub them he should have a colour code paint brush to help us go only to those that engage the issues.

I know I am not alone in treating DPF’s kiwiblog posts as must reads, but not the personal abuse. I made an exception yesterday, when I heard that apologists for the fascisti had been attacking the credentials of the lawyers whose work DPF might have drawn on. I will not dignify the attacks with a link.

In a major achievement over two years DPF got to the essence of Labour’s public money theft, when the Police would not, and drew out the practical implications of the woefully written current Bills.

If those attacking his law statements genuinely wanted information from authoritative lawyers there is a simple answer. The NZ Law Society submission, signed off by President John Marshall, had plenty of non-trivial  examples of uncertainty, and  potential oppressions. The witting or unwitting allies of the fascisti among the lazy journalists who keep pretending that there are two sides to this story, could have done the same. With John Armstrong and Audrey Young as honourable exceptions (supported by some editorial writers) most seem to have decided to stay ignorant so they can stay uncertain and thus ‘neutral’ on the government lies about the Bill.

Here (with thanks to Scott Clune) are some examples from quick technical analysis of issues in the reported back version:

·           clause 5(1)(a)(iii) has gone. It would have made virtually all political speech an ‘electoral advertisement’. Now the gag is defined by 5(1)(a)(ii). It restricts anything “that can reasonably be regarded as … encouraging or persuading voters to vote, or not to vote, for a type of party or for a type of candidate that is described or indicated by reference to views, positions, or policies that are or are not  held, taken, or pursued (whether or not the name of a party or the name of a candidate is stated)”.  What amounts to encouragement or persuasion is wholly unclear.

·           For other sample uncertainties see clause 61 (what specific knowledge is required to ‘wilfully contravene’ a provision of an enactment?) and clause 85A(4)(b)  (who is to say what is ‘appropriate’ to a particular ‘form of election activity’?);

·           Amended clause 5(f) has wide scope for unfairness or inequity. Any group could take a view that could wound deeply held convictions, or legitimate interests of others. For example AA, the Cancer Society, the Rugby Union, Federated Farmers, Greenpeace or even “Fly Buys” could properly take a stance on a matter where they want politicians to commit, and attempt to influence their members. Their unrestricted advocacy could not be opposed by a targeted community or sector outside the restrictions.

·           The new “donations protected from disclosure” regime is not an anonymous donations regime (as the Dominion Post 20/11/07 might be forgiven for thinking).  Donor identity must be disclosed to the Electoral Commission (28B(3) with no explanation of the purpose. The secret ballot was introduced to defend people  against local oligarchs. It protected the freedom to support political activity without being targetted by the vindictive winners. It was an integrity measure.

·           The cut-off for registration as a third party remains at writ day.  Writ day has historically been around one month prior to polling day. This prevents registration during the critical period when, inevitably, parties will announce new policies or make new claims. W Peters has a history of false allegations of scandal against some person or body on the Thursday before the election. It is usually too outrageous and vague to be properly rebutted before voting, but the Bill would stop the targets of such claims even countering the lies. If there was any good faith in this Bill the registration cut-off at clause 17(a)(ii) in respect of snap-elections would apply in all cases.

·           The restricted period has not been reduced.  An incumbent government always has advantage. They have power, so their pronouncements are news. In addition they can lawfully pay for propaganda about government initiatives.  If this Bill was genuinely an attempt to redress a percieved imbalance of power, it would have given challengers extra spending power for paid communication to balance the incumbency advantage. Instead they’re creating a restricted period of up to 11 months. In a 3 year election cycle that gives the incumbents the means to control political speech in New Zealand for greater proportion of the time than in any comparable country.

·           The Committee failed to address the compounding of the incumbent advantage in 80(d).  There may be a principled justification for leaving political parties, through incumbent members, outside spending restrictions while challengers are restricted, but the Bill does not make it.

The definition of “electoral advertisement” at clause 5 of the EFB seems incompatible with permitted uses of parliamentary funds in clause 3 of the Appropriation (Continuation of Interim Meaning of Funding for Parliamentary Purposes) Bill. If they mean what they say parliamentary funds could lawfully be spent on an “electoral advertisement” while Parliamentary Services is legally prevented from paying for it.

Any one of these issues justifies subjecting the Bill to a fresh round of error testing in the public submissions process.


  • Graeme
  • November 22nd, 2007
  • 7:43 am

“If they mean what they say parliamentary funds could lawfully be spent on an “electoral advertisement” while Parliamentary Services is legally prevented from paying for it.”

I’m pretty sure that cannot happen. There’s a concern that such spending may be unattributable at a party election expense, but I don’t believe new clause 55B (if that’s the concern?) would prevent Parliamentary Services from paying for it.

  • Graeme
  • November 22nd, 2007
  • 7:46 am

I should add that the Electoral Commission was entirely happy with having no cut-off date at all for third party registration, and pointed out, as I did, that in Canada, registration is only allowed after writ day!

  • sfranks
  • November 22nd, 2007
  • 9:29 am

You have faithfully followed the intricacies of this for months. You know by now it’s a tar baby. Why does COG not simply say “start again, and this time focus on a legitimate target – politicians who are bought”.

A law aimed at corruption might be worth something. It might target undisclosed donors and undisclosed promisors of support or other advantage to a party, or person, in amounts over say $100k (directly or indirectly).

This law has instead been designed for corrupt purposes.

It will engender a frenzy of avoidance effort by cunning backroomers of all parties.

From being a country of negligible legal contests around elections, we will empower lawyers to decide election outcomes. That genie will not go back to its bottle once released.

And in the process we lose the right of paid advertising/ pamphletting etc to challenge the media masters who currently decide in unconscious conspiracy with the ruling clique, (because they often share ‘values’ = passions, prejdices, agendas) the issues that will get media oxygen and accordingly the ground the election will be fought on.

  • Chuck Bird
  • November 22nd, 2007
  • 1:05 pm

I hope Stephen, Graeme or someone with knowledge of the law could say how those collecting signatures for a referendum at a public place will be affected by the new electoral finance law. I am presently collecting signatures at a table asking for a referendum on Bradford’s anti-smacking. The group organizing this can be seen at

  • Chuck Bird
  • November 22nd, 2007
  • 1:07 pm

Sorry I got the address for Unity For Liberty wrong. It is

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