Welcome to Florida

Chapman Tripp lawyers David Cochrane and Linda Clark warns that the next election may be decided by the courts, not by the public, as the Electoral Finance Bill is so flawed.

Bluntly speaking, the law is unintelligible. There goes another convention. The rule of law depends on all law being clear enough so we can all know the boundaries of legal behaviour in advance.

This bill fails to define the boundaries. Instead we’re told that common sense will prevail.

But what is common sense in the midst of an election campaign? And what kind of law is it when no one can know what it means until someone tests it in the courts?

And you bet there will be law suits.  Unless the parliamentary exemtion clause is water tight (and the Electoral Commission seems to think it is not) then every MP who spends more than $20,000 in all of election year from both their party and parliamentary budget may face an electoral petition.  By moving the regulated period back to 1 January, anything published in an election year by an MP could face scrutiny by opponents, in an attempt to prove they have over-spent, and hence are voided out of the election.

The 20 most marginal seats might all face electoral petitions, to test how far the parliamentary exemption extends.

And remember the new Bill also removes the discretion from the electoral agencies as to whether they refer possible breaches onto the Police. The Police will need a specialist team working all year dealing with complaints over whether authorisation was needed on this pamphlet or even placard.

The Law Society has called on the Government to send the amended bill back to a select committee for further consideration. That would be the right thing to do.

Democracy and elections exist for the benefit of citizens, not politicians. Those same citizens should be given the opportunity to review the law that regulates their participation in the electoral process.

Those who are meant to run the election and enforce this legislation have asked for more clarity. They should get it and they cannot if the bill is rushed through in the last week Parliament sits.

The last minute changes to be made next week (partly in response to analysis on blogs) are no substitute for proper analysis and refining.  Every day I am noticing new loopholes or problems, and some of them have massive implications.