The Electoral Finance Act threesome

Three articles on the Electoral Finance Act to cover today.

First we have Tuesday’s story about politically loaded questions in surveys may become an expense:

However, Electoral Commission head Helena Catt said anyone who tried to use push-polling or politically loaded survey questions thinking it was exempt from inclusion in the election spending limits could get caught out.

She said the limits of the provision were still untested, despite a similar clause existing under the previous law.

“The exception is for opinion polls and surveys, so it depends how one defines those. We would have to decide what a poll or survey is under that provision, for example whether it covers push-polling or only includes polling by polling companies, and whether there is an ethical dimension to it.”

One can’t disagree with anything there. However there are some interesting issues around the Privacy Act and the Electoral Finance Act in play. Take for example phone surveys where parties call people up and ask their views on some issues. This is research which is exempted under the EFA (and the old Act also).  The reason the parties do it is that they may use the data for a future communication (which will count as spending).

Now if you are going to be recording down personal data about someone (ie their response to a survey), you need to identify who you are calling on behalf of under the Privacy Act. So a party member calling might say “I am calling on behalf of xxxx, the local yyyy party candidate”. That way people know who they are speaking to, and can decide whether to respond or not.

But electoral authorities are worried that by saying the name of the candidate, even if just for purposes of identification, you might then be an advertisement.  So again it is all murky.

The High Court has indicated there are limitations – in its judgment on Winston Peters’ legal challenge of Bob Clarkson’s election spending after 2005, the Tauranga High Court observed push-polling was not covered by the exemption.

The court said the exemption for polls “reflects the facts that polls by definition do not seek to persuade, but rather to ascertain public opinion”.

This is quite correct – the research must be to ascertain not persaude.

Adding survey questions to material which was otherwise an election advertisement would also not make the entire brochure exempt from the spending cap.

The Electoral Commission is considering a NZ First advertisement which includes a survey, but the party claimed it is not an election advertisement.

The advertisement, which does not have an authorising statement, includes surveys on the China free trade agreement, and any sale of Auckland International Airport or the dairy industry.

Leader Winston Peters has argued it was not an election advertisement because it did not refer to its stance on policies of a future Parliament.

I think this is a perfect example of something that is not a genune survey. The NZ First advertisements were clearly designed to persuade but to ascertain opinion. It will be very interesting to see what the outcome on these will be.

Law Lecturer Dean Knight was on National Radio yesterday talking about the EFA and the Bill of Rights Act. He blogs about it here.

One part I will quote:

Now, it must be remembered that, at that stage, when the Bill was assessed and proceedings were filed, we were talking about the First Reading of the EFB – the more egregious version. Very few commentators and scholars thought the initial value judgement was particularly robust.

However, many of the restrictions were watered down by the Select Committee and the Mark II version of the Electoral Finance Act that was actually passed did not limit the freedom of expression to the same extent. Arguably, questions of consistency with the Bill of Rights were in the zone where reasonable people could differ.

I think Dean is being very nice when he says few people thought the initial value judgement was robust. This is referring to the Crown Law advice that the original Electoral Finance Bill did not breach the Bill of Rights. It still staggers me how a bill which would have forced NZers to file statutory declarations just to express their view on a political issue could be judged not to shatter the Bill of Rights. Rather than sack the person at Crown Law who write such a flawed opinion, the Government promoted her to the Law Commission.

Dean is right when he says reasonable people can differ on whether the final version of the EFA is consistent with the Bill of Rights. By implication this suggests that no reasonable person could have argued that the original Bill was consistent. Yet that is exactly what Crown Law did.

Finally we turn to an article on Newswrire about a possible EFA breach by National MP Katrina Shanks.

A local website is The Flying Pickle. It is a local community site for the suburbs of Korokoro, Maungaraki and Normandale. Any local resident can post stories there so Katrina had been putting articles on there attacking Labour. They were under her name, but unless the website is a newsmedia site or a blog, then they may count as election expenses and need an authorisation statement by her financial agent.

All very stupid. We should encourage MPs using local sites and the transparency requirement is met by posting under her name.

I am increasingly of the view that after the election the replacement for the Electoral Finance Act will need to have a fairly conservative definition of advertising so that it doesn’t regulate every form of advocacy. I also think the transparency requirements need to be totally revised as it is ridicolous that an MP needs an outside party to be authorising their parliamentary statements.

This is what Linda Clark was talking about in her Listener article – the EFA is makng it hard for MPs and candidates to communicate with the public at they very time we want communication.