Labour’s Response

Okay Labour has now had the CEO contact them three times over the pledge card. They have realised he is not going to be fobbed off. So this time they reply in detail to why they should not be referred to the Police for the lack of authorisation (the over-spending issue comes later). Their points are:

There is no way the statutory requirement of “wilfulness” can be proved on the facts as required by Section 221(4)

What does Section 221(4) say: “Subject to subsections (2) and (3) of this section, every person is guilty of an illegal practice who wilfully contravenes any provision of subsection (1) of this section.”

Now “willfulness” is a requirement for Section 221 prosecutions. However, and this is crucial, it is not a requirement for over-spending under Section 214B. In fact is is the opposite – 214B makes a breach a matter of strict liability, regardless of intent.

This makes sense. One can accidentally break the authorisation rule (as I have done in a very minor way once) but the over-spending rule is not one you can easily break accidentally. Hence it does not require proof of “willfulness”

To successfully use the willfulness defence, in my opinion, would need an exploration of who was in the room when the pledge cards were discussed and agreed to. But regardless of the willfulness defence the key thing is that it is *not* a defence for the over-spending.

Paragraphs Seven to Twelve from Mike Smith then deal with whether the pledge cards were within the guidelines of The Parliamentary Service. This is irrelevant to the Electoral Act. The internal rules of the PS do not trump the operation of the Electoral Act. The law is very settled on this point.

Then Mike Smith tries to argue under the Bill of Rights Act that interpretation must be done in a way to promote freedom of expression. Cute.

Finally Smith falls back on parliamentary privilege saying that the Electoral Act can not over-ride the privileges of MPs to communicate with their constituents in the manner permitted by the Speaker. Also very cute.

Now I am not a trained lawyer. However these arguments did not convince the Chief Electoral Officer or the Electoral Commission which is made up of the Secretary of Justice, a former Judge and a current Judge (plus their CEO). The ultimate test would have been to have a Judge hear the case and decide on the current circumstances. It’s worth noting too that even the Police said they thought a conviction was probable.

What is fascinating is the one thing Mike Smith did *not* argue. Nowhere did he argue that the pledge cards do not “encourage or persuade or appears to encourage or persuade voters to vote for” Labour. That is the key test laid down by the Act. Not only does Smith never challenge that the pledge cards on these grounds – neither do the Police as we shall see.

Instead Smith has argued that MPs are not bound by the Act, so long as the Speaker has approved their publications. Well this is contrary to the specific advice given to MPs by the Electoral agencies in their handbooks and is against the case law set down by the Wairarapa Electoral Petition.

Finally Mike Smith, possibly recognising the seriousness of the situation, makes his offer to include the pledge cards in their election return.

If I was a journalist I would be asking Mr Smith why he made that offer, who agreed to that offer being made, and why was it withdrawn later.

One should also remember that political parties and candidates are paranoid about over-spending and track expenditure carefully. In WC I had a spreadsheet which depending on what day the election was called tracked to the exact $ how much expenditure we had already incurred against the $20,000, how much is budgeted for next few weeks etc. Also National Party HQ tracked their expenditure plus the party vote expenditure of all 62 MPs on a very regular basis to check they were under the limit.

My point being that on the day Mike Smith offered to include the $448,000 in their election return, he *must* have known that would put them over the limit. You would be the most incompetent campaign manager in history if you did not know three days before the election whether you could afford to add $448,000 to your return and stay within the limits.

The only conclusion one can draw is that the Labour Party General Secretary deliberately lied to the Chief Electoral Officer, to kick for touch until after the election. And a decent police investigation would have asked who he consulted with before making that offer. Because unless you believe in Santa Claus you would think he would never ever make that call on his own authority.