The Press on Electoral Finance Act

Saturday’s Press editorial was on the Electoral Finance Act:

The mire that is the Electoral Finance Act grows deeper by the week. It is now more than four months since the controversial legislation came into effect and the last possible date for the general election is less than half a year away, writes The Press in an editorial.

This is the time when political parties and lobby groups should be finalising their campaign strategies, with the confidence that iron-clad election laws provide. But as this week’s High Court case involving the Engineering, Printing and Manufacturing Union has demonstrated, the new regime of the controversial act remains murky.

More than murky. What is and is not an election advertisement is still a matter of conjecture.

This case was about whether the union could register with the Electoral Commission as a third party, or lobby group, under the act, which would entitle it to spend up to $120,000 on election advertising. Unregistered groups or individuals have a far smaller $12,000 spending cap.

This was challenged on the grounds that a “person” involved in the administration of a political party was not eligible to be registered as a third party. Last month the commission, after taking Crown Law Office advice, decided that the EPMU was not a natural person and therefore decided to register the union.

There is a story to be told about Crown Law and its advice, such as the growing number of Departments who are no longer using Crown Law for legal advice. It has become all too political.

But the High Court in Wellington took the opposite position on this issue. It did not rule on whether the EPMU’s close links with Labour would make it ineligible to be a third party, leaving this question to be resolved by the commission. …

A big test of the legislation’s treatment of third parties could come if the EPMU is refused registration by the commission. The union is adamant that if this occurs it will still mount a campaign based around workers’ rights and wages.

They will need to be very very careful. If parties have policies on workers’ rights and wages, then a campaign on those issues could well be seen to be an election advertisement. And the fact that the EPMU is on the record as saying their aim is to influence the election outcome with their campaign means that a Judge could find a breach of the Act was deliberate and a corrupt practice.

Issues-based campaigning by non-registered lobby groups is permitted under the act, and there is no spending limit, providing advertising does not encourage people to vote, or not vote, for a political party or even a type of party. But it would be a neat and delicate trick to run a publicity campaign based around workers’ rights and which cost more than $12,000 without breaching this particular provision, given the politically charged nature of employment relations in New Zealand history.

Indeed.

The commission, which plays a major role in implementing the electoral finance regime, deserves some sympathy. It has been forced to make decisions on a case-by-case basis over issues where the meaning of the act is unclear, as shown by the differing legal opinions over the EPMU bid for third-party status.

Oh the Commission has a damn awful job thanks to this stupid law. Having said that, when they see crappy legal advice from Crown Law (and their affidavit shows they had some issues with it) they could choose to seek alternative advice.

The commission has drawn some unwarranted criticism for its decisions, but the real fault lies with the Government and those support parties which demanded this legislation. Most New Zealanders would believe there is a place for third-party election advertising, because this allows non-politicians to participate in the democratic process. Most people, after the Exclusive Brethren campaign last election, would also argue that there must be financial limits on third parties to prevent moneyed interests buying an election. The act is an attempt to reconcile these goals.

And if the Government has not drawn up the law in secret, but embarked on a public consultation exercise prior to introducing a law change, a much more workable regime could have been developed. But they tried to “screw the scrum” with a partisan incompetent law – and in the process shattering the constitutional conventions around the Electoral Act.

But, even leaving aside longstanding accusations that the legislation screws the scrum in favour of the Government, it is also failing in a practical sense, and one key reason for this is that it took effect on January 1.

A more sensible course would have been to have delayed its introduction, at least for this year’s election. This would have provided a breathing space during which the ambiguities in the act could have been calmly resolved, not allowed to become political points-scoring issues in their own right.

Or to have kept the regulated period at 90 days, so one would have had January to July to clarify the law in respect the regulated period activities.