Anderton referred to Police again

Dear me. Jim Anderton and his party have been referred to the Police for a second time by the Electoral Commission. This maintains the perfect record of parties that voted for the EFA breaking it, and parties that voted against it not yet having fallen afoul of it.

Jim did not include a promoter authorisation statement (again) on his e-newsletter. He offerd an impressive range of defences against breaking the law:

1. Parliamentary Privilege – “He suggests that the issue is governed by parliamentary privilege and that the Electoral Finance Act makes no intrusion on this process”
2. Just press statements – “Mr Anderton asserts that the material is not an election advertisement because it contains press statements and statements of policy.” Jim doesn’t realised he voted for a law that covers press statements also.
3. Jim is an Editor – “He further asserts that if the content is found to fall within the general definition of an election advertisement in section 5(1) of the Act that the material falls within two exemptions: section 5(2)(b) editorial material in a periodical”
4. Jim is a blogger – “and section 5(2)(g) personal views published on the internet.”

The Electoral Commission provide some useful reasoning in their decision, relating to what is an advertisement:

The Electoral Commission accepts that accounts or reasoned criticisms of policy and accounts or reasoned criticisms of actions or inactions generally are not “reasonably” regarded as election advertisements, as such categories are essential to informed democratic elections. The Commission considers material which essentially is mere exaltation to vote in a particular manner or self promotion, or abuse, or slogans, generally falls into a different category. Such material is persuasion without an information basis. While commonplace, it is not essential in the same way. Material in this latter category properly falls within election advertising constraints.

Jim’s problem is he abused John Key and repeated the Progressive’s campaign slogan. The abuse is deemed a marginal call and he escapes on that, but gets sunk by using their campaign slogan.

While context and circumstances will be important, passages which amount to election advertising are not saved simply because they occur within a wider range of material which is not election advertising.

This has always been the case. If part of a publication is an advertisement, the whole publication is.

The Commission point out the editorial exemption for a periodical is only for a “newspaper, magazine, or trade or professional journal” so MPs e-newsletters do not qualify.

As for parliamentary privilege:

The Commission has accepted that proceedings within the House are protected, despite the Act, by Article 9 of the Bill of Rights. It also accepts that parliamentary privilege can extend more widely. However, the Commission does not accept parliamentary privilege prevails over the Act so as to exempt such communications between MPs and the public from constraints on election advertising. If such an important and wide exception had been intended, it is likely that an express exclusion would have been included in section 5 (2) as is the case with certain other matters.

The Commission found overall that it was an election advertisement, that Jim Anderton was the promoter of it, and that in their opinion Anderton broke the law so they have referred it to the Police.

I suggest all MPs and parties should read the decision in full. It is one of the more detailed decisions they have published.