Public Address on EFB

Graeme Edgeler from the Coalition for Open Government writes at Public Address on the Electoral Finance Bill.  He encourages people to submit and points out that not only does it over-reach the third party provisions, but it makes almost no progress on all the other areas of reform.  My summary of what Graeme said is:

1. Anon Donations & Secret Trusts – no action
2. Exclusive Brethren campaign – limit is too low, definitions are too broad, and many of the effects of the bill as currently written are perverse
3. Misuse of  parliamentary funds – COG says it isn’t dealt with (and isn’t really an electoral issue)
4. Labour’s breach of the spending cap – COG says no dealt with.  Some have a view that the EFB will legalise their overspend by explicitly exempting parliamentary spending.
5. Foreign Donors – no action
6. Broadcasting Limit Breach – no action
7. Police Incompetence – no change in prosecuting authority
8. Time for laying prosecutions – a useful change to clarify when six months begins
9. Peters vs Clarkson – clarifies rules which were argued in that case

As Graeme says, it is not even a mixed bag.  I have another six or seven areas such as ability to pool advertising and broadcasting budgets which the EFB does not address.  Labour have ignored almost every single positive reform measure and gone totally over board on the third party restrictions.

I do not share the COG’s optimism that the bill can be suitably amended at select committee to turn it into good law.  In fact I have a massive concern that what will come out of select committee will be just before Christmas and rushed into law to take effect by 1 January.  There will be almost no chance for public debate on the revised bill.

And that would be bad enough at the best of times.  But even worse, the Government has never even engaged the public in debating the issues in the first place.  It has spent months cutting deals in secret, gutting the transparency provisions, and not once has it issued a public discussion document.

Below is what should be the process for matters such as electoral law:

1. Release a public discussion paper (green paper) on issues and options
2. Consult with public and parties on the paper
3. Summarise and release feedback on the options
4. With as much consultation as possible with all parties, release a public discussion paper (white paper) with specific recommendations
5. Ask for feedback on recommendations from public and parties
6. Summarise and release feedback on the recommendations
7. Release final policy statement on desired changes
8. Cabinet then instructs PCO to draft changes on basis of widely consulted on and known policy
9. Minister introduces Bill and refers it to select committee
10. Select Committee can then work on changes to the bill which do not dramatically alter it, but improve it to meet its intentions

Now someone may suggest that is over the top.  Well far from it that is close to normal process for almost any policy area.  Digital Copyright went through three or four public policy papers and consultation before legislation was introduced.

So why would we accept anything less for the Electoral Act – a keystone of our constitution.

The last time we embarked on major reform, we did so after a Royal Commission and a wide public debate and consulation.

This is why most reluctantly I do not think the Bill should proceed at all.  90% of the important issues are missing from it and the minor improvements do not come close to  making up for the draconian third party stuff.

The public deserve better than merely getting to make one submission on an incredibly flawed bill and then no say at all on what will inevitably still be a partially flawed bill in the days before Christmas.  It will result in bad law.

I am not saying throw the bill out because I do not want any changes to the Electoral Act.  To the contrary I want lots and lots of changes.  I want bigger fines, I want better enforcement, I want more flexibility with broadcasting, I want inflation adjustments, I want clearer rules, I want more transparency.  I was looking forward to having a halfway decent bill which could be turned into a good bill.

At the seminars I have attended on this issue, and the debates I have had with people from all over the political spectrum, I believe a proper public consultation process would lead to a high degree of consensus in many key areas.   There are some really sensible changes that need to be done – but again they have almost all been ignored.

Let us take just one example – the bill’s failure to clamp down on anon and trust donations.  Now I agree with COG that they should be in the bill.  But I would disgaree with them on at what level they should be disclosed.  I’m comfortable with the status quo of only disclosing above $10,000, while COG wants $250.  Now the problem is yes we may get the select committee to agree to ban anonymous donations but who knows what level they may set it at.  It might be $250 (which I think would be a hideous invasion of privacy) or they might even make it $20,000 to fit the continuous disclosure provision (which COG will scream at).  But the problem is what ever level they set it at, then we will not have a chance for a public debate or whether that is the right level.

We need to have the public debate up front and before the bill is drafted, so we can capture all the areas on which there is a consensus.  That way then  time can be spent on debating details such as the actual level of disclosure, rather than the fundamental principle of do you allow anon donations at all.

So sadly my position is that the bill should be thrown out entirely, and the Government told to go away and do a proper job of consultation and public debate.  It will be better to get a really good law in place for the 2011 election than a badly flawed law rushed through in the days before Christmas.