Summary of the Case
The overall case is damning. In summary:
* Labour were told 17 days before the election that the CEO considered the pledge cards electoral advertisements.
* Labour offered, prior to the election, to include the pledge cards in their election return.
* That offer, was withdrawn after the election. The large cost of the pledge cards makes it difficult to reach any conclusion other than the offer was made with bad faith to stop the CEO referring them pre-election to the Police. In other words they lied to the CEO.
* The overwhelming view of the top electoral and legal authorities, including the Secretary of Justice and the Chief Electoral Officer, was that the pledge cards were very clearly electoral activity and expenses.
* The Police investigation was superficial, and did not even investigate the over-spending charge.
* The Police brought into the view of Heather Simpson that the Parliamentary Service Commission rules over-ride the Electoral Act. This is despite the PSC rules themselves referring to the fact some parliamentary expenditure can be electoral expenses under the Electoral Act
* The Police kept confusing the two issues, right up until after the public release, when the CEO put them right.
* The Police failed to consider that Section 214B offences have strict liability, where intent is not required.
The unfortunate effect of all this, is that the authority of the Chief Electoral Officer and the Electoral Commission have been massively undermined, perhaps fatally. If a party can ignore warnings from the CEO 19 days before the election, lie to the CEO, make offers and retract them and all without any sanction at all – then you have the wild west.
I doubt any person could read these reports and paper and not conclude that if the Police had prosecuted for over-spending, a Judge would beyond any reasonable doubt have found the key people in Labour guilty of at least an illegal offence, if not a corrupt offence. This is what you call a slam-dunk.
The pity is we will never know. The time-line has expired, no private prosecutions are possible.
I am pleased to see that since I started this series of posts, there have been three stories in the media on this issue. Nick Venter did a very well researched story in the Dom Post on Saturday (not online) and both Ruth Berry and Fran O’Sullivan wrote about it in Saturday’s Herald. Fran has written on this previously.
I didn’t do this series of posts with the aim of generating stories in the media. I did it because I just wanted the story to be documented somewhere. Each day as I read more and more documents I got more and more outraged. My friends got sick of me no doubt ringing them every day exclaiming “You won’t believe what I’ve just read”.
Was this a stolen election? No-one can know. You can’t say if Labour had spent $350,000 less money (this is taking into account the $100,000 accidental extra broadcasting booked for National) they would have got less % of the vote. Certainly what you spend does affect the vote (otherwise one would not spend) but it is not a simple linear relationship.
What one can more easily determine is was it deliberate. Imagine you are in Labour and it is your worst nightmare – you are actually behind in some of the polls. National was meant to have no chance of winning in 2005 after the 2002 result yet Labour’s third term hands in the balance. The small centrist parties have said they will support the party with the most votes so even 1% or 2% makes a huge difference.
You know the CEO’s view on the pledge cards. You have a choice. You can reduce spending on your other advertising or you can risk being prosecuted after the election. You decide the election is too close to stop spending, so you take a gamble and risk prosecution. However to stop any adverse publicity pre-election from an investigation, you tell the CEO you will include the pledge cards as an expense (and implicitly restrict your other spending) so no news comes out during the final week. A few weeks later you then recant on your offer.
It may not be a stolen election, but it does make it a very dodgy “win”. If the Police had done their job then there would be the benefit of a Court Judgement to resolve the matter.
I will blog at a future date on the other non-prosecutions – the unions and the Brethren for their third party advertising and National over the GST error. But they are seperate to this case and I don’t want to muddy the waters as they have very little to do with each other.