Where should the SFO focus?
It’s excellent news that the Police have referred on the Electoral Commission complaint about NZ First to the Serious Fraud Office. The Police have a woeful record when it comes to electoral law enforcement, while the SFO have shown much more ability to investigate these issues.
So what offences may have been committed and who may have committed them? We can now answer this question as the Electoral Commission has determined that they believe any donations received by the NZ First Foundation should have been treated as party donations for NZ First.
This is also common sense. The donors thought they were donating to NZ First. Many of them didn’t even know there was a Foundation. So let’s look at the Electoral Act.
- S207B(2) requires those who received the donations to pass it onto the party secretary (or deposit it into a bank account they nominate) within 10 days. This appears to have been broken dozens of times.
- 207LA says it is a corrupt practice to direct or procure a party donation be split between two or more body corporates to conceal the total amount of the donation. This appears to have happened with several donations.
- 207N requires a party secretary to keep proper records of all party donations received by them. Was she aware of the donations?
- 210(1)(a) required all donations over $15,000 to be notified to the Electoral Commission, with the identity of the donor. Were donations split to avoid this?
- 210(6A)(c) requires the number and total of donations between $1,500 and $5,000 to be disclosed.
- 210(6A)(d) requires the number and total of donations between $5,000 and $15,000 to be disclosed. This was not done.
- 210D(2) states that it is a corrupt or illegal practice for a party secretary to file a false return under s210. The returns appear to be false.
So who should the SFO be talking to, and what should they find out?
- Ask the donors who solicited the donation from them
- Ask the donors whether the NZ First Foundation was mentioned to them or known to them
- Ask the donors how the donation was paid, and who provided the payment instructions. Who did they think they were donating to?
- Ask the donors who split their donations between multiple companies why this was done, and who suggested it.
- Find out who controlled the NZF Foundation bank account. Who authorised expenditure from the account on behalf of NZ First?
- Interview the former NZ First President and Treasurer who resigned because they suspected donations were being hidden from them. Who did they seek information on donations from, and what was the response.
- Was the NZF Party Secretary aware of the NZ First Foundation? Was she at the board meeting when it was discussed setting it up.
- Who in NZ First was aware that donations to the party were being given to the Foundation instead?
- Who in NZ First decided that any donations to the Foundation would be hidden from the party and not treated as party donations under the Electoral Act
So lots of stuff for the SFO to investigate. Some of the work may have already been done by the Electoral Commission.
UPDATE: Thought of four other pertinent questions.
- Which board members caucus members and other officials knew of the NZF Foundation, and specifically knew party donations were being paid into it, and expenses being paid out of it?
- Who was the controlling or deciding person who determined that party donations would be paid into the Foundation and used to pay party expenses?
- Were the Auditors aware of the NZ First Foundation when they signed off the donation returns? Did they ask questions about it?
- What was the reason for the Foundation to lend money to the party and for it to be repaid the next day?
- Were the party expenses that were paid by the Foundation included in the NZ First 2017 expense return?