Linda Clark on anti-democratic Electoral Finance Act
Most readers will remember Linda Clark from her days in the media – TVNZ’s political editor and then nine to noon host on Radio NZ. Linda is now a lawyer consultant with Chapman Tripp and has written an article with colleague Andy Nicholls for the Listener on the Electoral Finance Act:
An Act rushed through late last year is threatening our right to really know who we will be voting for – even our politicians are playing a waiting game, and it needs to be fixed now.
Stick-on tattoos, old T-shirts and the Finance Minister referring to his own Government in Budget media releases all have something in common: all three could be in breach of the Electoral Finance Act.
That good old law of common sense.
The EFA, as insiders call it, is the law pushed through, amid bitter debate, just before Parliament rose last Christmas. It was supposedly designed to prevent the Exclusive Brethren taking another covert run at the Labour Party. But in the tradition of cracking a nut with a sledgehammer, it went much further than that – and the Government was warned. The EFA’s dampening effect on the current election campaign is so serious, it is anti-democratic.
Strong but accurate language. It was a massive over-reaction and motivated by utu rather than workable law.
Though National has said, if elected, it will repeal the EFA, it needs to be fixed now if this campaign is to be a fair contest. Voters should be able to see for themselves what and who is up for election and not just in a flurry at the last minute.
At the moment parties are so nervous about breaching spending caps set down in the Act, they are holding back their candidates from campaigning and robbing voters of the opportunity to be informed.
The cynical response to all this is to sigh with relief. After all it means mailboxes free from political leaflets and city intersections not overcrowded by billboards of smiling wannabe MPs. But in truth, the advertising will come, just not until much later in the campaign. Election advertising serves an important purpose. It commits political parties to key promises, for a start. And in the contests for electorates, which these days are given scant media coverage, it helps voters identify one candidate over another.
In the electorate contests especially, the EFA is particularly bad making it near impossible for a non incumbent candidate to get known.
The Maori Party recently produced stick-on tattoos of its distinctive red and black logo. The plan was to give them away to kids at festivals and party fundraisers. The tattoos are small, temporary and hardly an invocation to vote. They simply say “Maori”.
But acting on advice from the Electoral Commission, the Maori Party was forced to somehow get the name and address of the party official who authorised production and publication onto the tattoos, since they may yet be deemed to be advertising – and all advertising must carry authorisation.
Now this is an interesting case. What if someone got a permanent tattoo done without an authorisation statement. They would be charged everytime they went out in public if it was visible!
The Commission, which can with some justification sit back and say, “We told you so” (because it did speak out publicly against the law before it was passed), has opted not to provide any sign-off of expenditure before the election. But it will give parties basic guidelines which, according to party strategists, are often little more than a conservative interpretation of the Act and a nudge to be careful.
The trouble is none of this offers any of the parties any certainty that what they are doing is not in breach of the EFA. It appears the electoral commissioners have struggled to form a unanimous view on some issues referred to them, but their lawyers, Crown Law, have already been proved wrong in the High Court on one basic aspect of the Act.
In normal circumstances, Crown Law should be able to be relied upon to provide firm guidance, but in this case its copybook is blotted by its initial failure to declare that the Electoral Finance Bill breached the Bill of Rights Act – that is also being challenged in the courts. None of this makes for good law.
Trusting Crown Law advice on any aspect of the ACT would be a silly thing to do, in my opinion.
Already party activists are compiling dossiers of every communication published by rivals since New Year’s Day, with plans to file for electoral petitions in selected electorates after polling day. If opinion polls prove right and the National Party maintains its dominance of the party vote, these court cases probably won’t hold up the formation of a government, but they could if the numbers turn out to be more finely balanced.
Such an outcome serves nobody. Elections should never be decided by the courts and electioneering should not be such a guessing game.
But court battles are inevitable due to the Act.
The Electoral Commission, and only the Commission, should be given authority to make binding rulings on any issues brought before it.
The process should be fast and public, and the rulings, once made, should apply equally to all parties. Rulings should be able to be reviewed before the election, but overturned only if a breach of process is proven.
The benefits should be obvious. As each party seeks approval for a certain type of spending, a clear set of guidelines will be built up. Everyone will know what is legal spending, so there should be no need for a succession of legal cases testing the law, and the possibility of post-election legal challenges should be greatly reduced.
Not a bad idea at all.
If the 63 MPs who voted for the EFA really wanted to promote participation in our democracy (one of the stated purposes of the Act), they should see that this election campaign is being unduly restricted by the Act and take the necessary steps now to make this law more workable.
I have heard on the grapevine that the Greens now regret voting for the law. The problem is Labour will never admit they were wrong. And Winston just ignores it!