May 8, 2012 12:00pm by David Farrar

2011 election review submission

SUBMISSION OF DAVID FARRAR TO THE
INQUIRY INTO THE 2011 GENERAL ELECTION BY THE JUSTICE & ELECTORAL SELECT COMMITTEE

About the Submitter

  1. This submission is made by David Farrar in a personal capacity. I would like to appear before the Committee to speak to my submission.

Maori Roll Enrolment

  1. The Electoral Commission has suggested that the “Maori option” be run not after each census, but in the lead up to each election. I strongly oppose changing the Maori option timing from after each census to before each election.
  2. This would encourage tactical enrolments as if a particular seat (either general or Maori) is seen as marginal, parties will encourage their supporters to swap rolls to try and win the seat. This can happen under the status quo, but would be far more likely when the option to swap is done in an election year.
  3. It would also upset the electoral populations. The option is run after every census, so that it can be used to determine electoral populations and hence boundaries. Allowing people to then swap rolls after the boundaries are set could cause some seats to have extremely low or extremely high electoral populations.

Election Day and Advance Voting Restrictions

  1. The Electoral Commission recommends removal of the polling day exemptions for party lapel badges and ribbons and rosettes in party colours. I agree that rosettes and lapel badges could be banned, but would suggest that party scrutineers be given name badges to indicate they are scrutineers not officials.
  2. However I would not remove the exemption for streamers and balloons in party colours. We do not need to have a balloon or ribbon police.
  3. I also oppose the recommendation to prohibit election advertising within 100 metres of an advance voting place. It is unfair to a party or candidate that may have booked a billboard at a location near an advance voting place, but also is impractical. In theory even newspapers with ads in them would have to be removed within 100 metres of an advance voting place.
  4. The likely growing popularity of advance voting, along with the advent of social media, makes the current laws on election day communications somewhat outdated. I suggest a first principles review is done of what harms these restrictions are designed to prevent (such as undue pressure on people as they are about to vote), and then decisions made on what is a sensible level of regulation to minimize or prevent these harms.

Electronic Voting

  1. I note that it is proposed that some local Councils will trial e-voting for the 2013 local body elections, and then in 2016 possibly have e-voting available for all local body elections. If this is concluded sensibly, then it may be possible to look at an e-voting option for the 2017 or 2020 general election.
  2. As an interim step, I support the Electoral Commission intention to allow overseas voters to deliver their votes to the Electoral Commission over the Internet.

Allocation of List MPs

  1. I agree with the recommendation that the High Court should be able to direct the Electoral Commission to recalculate the allocation of list seats, as a result of a successful electoral petition.
  2. It would also be sensible to allow the High Court to direct the Electoral Commission to recalculate the allocation of list seats as the result of a by-election held immediately after the general election as a result of a candidate dying. This removes the incentive for a party to put up a dying candidate in a “strategic” seat.

Election Returns

  1. I agree that a party or candidate who refuses to file a return should be able to be prosecuted for a corrupt practice. This removes the incentive to file no return rather than a false return.
  2. However I would go in the other direction for late returns, and make this a minor infringement that results in an automatic modest fine (like filing your tax return late). It is silly to involve the Police in such minor issues.

Broadcasting Act

  1. I agree with the Electoral Commission that the definitions of election programmes and election advertisements in competing Acts should be harmonized. My preference would be to remove the electoral broadcasting sections from the Broadcasting Act, and have then in the Electoral Act.
  2. I repeat my earlier submissions than the ban on political parties purchasing their own broadcasting time is outdated and an unjustified restriction of free speech. Worse, it means that different parties have different effective spending limits as a party allocated less broadcasting spend than another, is unable to close that gap.

Role of the Police

  1. I have advocated for over six years that the Police should be removed from their current role of prosecuting electoral breaches. I am pleased to see the Electoral Commission effectively come to the same conclusion.
  2. In 2005 their investigations of electoral law breaches was arguably incompetent. Extremely basic errors in law were made, where they ignored strict liability and confused the difference between spending limits and who can authorize and advertisement.
  3. In both 2008 and 2011 they did not investigate alleged offences in a timely manner. In fact we still do not know their conclusions on offences they were referred to them almost a year ago. I do not blame them for prioritizing other crimes ahead of electoral offences, but it is wrong that there is no timely and effective enforcement of electoral law.
  4. I propose that the Committee recommend to the Government that they agree in principle that the Police be removed as the enforcement agency for electoral law, and that they consult on the preferred replacement model.

Referenda

  1. It seems silly that every time the Government and Parliament wants a referendum they have to pass a special Act of Parliament to hold it, and decide each time what spending and other restrictions are appropriate.
  2. I support the creation of an Electoral Referendum Act that will set out the laws for all future referenda.
  3. The ERA could supersede the CIR Act by specifying the two methods of triggering a referendum are by way of petition (the CIR route) or resolution of the House of Representatives.

Date of Election

  1. The early announcement of the election date was very beneficial both for election administration, and for creating a level playing field for all parties.
  2. Based on this success, I believe it would be beneficial for the date of the general election to be fixed as being the last Saturday in November.
  3. If in future a Government feels it has lost the majority of the House, then it would be incumbent on the House to find a new Government which has its confidence.

Communications from MPs

  1. A number of MPs were referred to the Police for unauthorized election advertisements. As MPs will be aware, the authorization requirements apply over the entire three year election cycle – not just in the regulated period.
  2. It is useful to consider the reason we have authorization statements – to make clear who is behind an advertisement. It is a transparency requirement.
  3. The nature of parliamentary communications is that some of them will always be political in nature and hence possibly an election advertisement. This means MPs at present need to either refer all communications to the Electoral Commission, or stick authorization statements on everything they publish.
  4. I believe that a simple solution would be to amend the Electoral Act to state that outside the regulated period, any publication put out in the name of a Member of Parliament, is deemed to be authorized by that Member of Parliament and does not need a promoter statement.

Minor authorisation breaches

  1. In many cases where there has been a referral to the Police for the lack of a promoter statement, the breach has been technical rather than substantive – the identity of the promoter has still been very clear. I believe this is very different to a case where advertisements are done anonymously in an attempt to hide their promoter.
  2. It would be sensible to allow the Electoral Commission to levy a small infringement fine for minor breaches, rather than require it to be considered in details by a prosecutorial authority, and possibly waste court time.

Donations

  1. The donations regime seems to generally be working well. However it would be a boost to transparency to lower the level at which donations must be disclosed within 10 days from $30,000 to $15,000 – which is the disclosure level for annual returns. This should simplify requirements for political parties, and allow scrutiny of significant donations in a more timely fashion.
  2. Political parties are having to track any donation above $15,000 anyway, so reporting them as they occur should not pose any difficulty. Perhaps the requirement to report within 10 days could be altered to reporting monthly, say by the 20th of each month for the previous month.
  3. It could also be worth requiring near-instant disclosure (say within three working days) for the month before the election. In 2008 two parties received very large donations just before the election and did not disclose them until after the election.
  4. I would also submit that the ability to make anonymous donations through the Electoral Commission should be removed. A donor can donate up to $15,000 a year without public disclosure, which is sufficient for those wishing to donate without publicity. I am skeptical that the identities of those who donate anonymously through the Electoral Commission are a total mystery to the recipient parties. While it is a much more rigorous regime than the Local Electoral Act, it is difficult to have confidence that the identity of the donor is not able to be logically deduced from previous conversations with a party.

Thank you for considering this submission, and I look forward to appearing.

 

David Farrar

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