Legal Beagle by Graeme Edgeler

Parliament's Government Administration Committee is currently considering the Members of Parliament (Remuneration and Services) Bill. It will surprise few of you that I have made a submission. For those interested, it is copied below.

If you have a view on MP's pay, feel free to let them know. There have only been a handful of submissions so far, including one from former National and New Zealand First MP Dail Jones who submits that the former MPs who still get the travel perk shouldn't have to fly economy and should be funded at the level of premium economy airfares. Submissions close today, but it seems to be the practice of the of the Submissions team at Parliament not to close of electronic submissions until a couple of days after the close-off date, so if you want to have a say over the weekend, you'll probably be fine.

You still have a couple of weeks to have your say on the MMP Review as well. Although, if you don't, I won't stop you from complaining. That would be stupid.

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Overview

My name is Graeme Edgeler. I am a Wellington barrister with a strong interest in electoral and constitutional law. I think the Committee for the opportunity to comment on the Members of Parliament (Remuneration and Services) Bill (“the Bill”). I would welcome the opportunity to speak to my submission.
 
I support the passage of this law, which aims to simplify and clarify various matters relating to the funding of members of Parliament.
 
In particular, I support the introduction of an independent process by which MPs’ allowances and services will be determined. In the wake of some of the scandals in the UK, and the mini-scandals here, there is much room for improvement. Whilst it is important that members are provided the facilities to effectively fulfil their roles, the funding should not be able to be used, for example, in a way that tilts the electoral playing field in favour of incumbency.
 
I strongly urge the Committee to voice its support for the proposal of the Law Commission, contained in the Report that has lead to this bill, to extend the Official Information Act to parliamentary agencies.
 
While I do support the passage of the Bill, I submit that it could be improved in a number of respects, and propose the following amendments to the Committee.

Mid-Term List MPs

As you will be aware, under MMP, members of Parliament can enter Parliament other than at an election, following the vacation of the seat held by a list MP. They are declared elected by the Electoral Commission publishing a notice in the Gazette. There have been a few such MPs in each Parliament since the adoption of MMP.
 
I submit that these mid-term list MPs should be paid.
 
The need for the law to permit this is hopefully self-evident, but neither the Bill nor the Civil List Act 1979 provide for it.
 
Clause 11 presently provides that a salary for an MP is payable during the appropriately specified periods for:

• MPs (whether electorate or list) elected at an election (whether a general election or by-election); and

• Electorate MPs returned at an uncontested by-election.

It does not state (and nor does the equivalent section in the Civil List Act) that a salary is payable to a List MP returned other than at an election, as occurs whenever the Electoral Commission declares someone elected under s 137 of the Electoral Act 1993.
 
This leaves two interpretation – either there is no period in which mid-term list MPs are entitled to be paid, or such MPs are somehow deemed to have been elected at the general election and are entitled to back pay. Neither interpretation is acceptable.
 
I submit that clause 11(2) should be amended to something like:
 
“(2)     However, if a member of Parliament is returned at a by election that is not contested, or is returned as a result of a vacancy of a seat of a member elected from a party list,—
(a)        subsection (1)(a) does not apply; …”
 
The Committee may wish to seek advice as to whether it would be necessary or appropriate for this legislation to validate past salary and allowance payments made to mid-term list MPs.
 
If the Committee adopts my suggestion, it should ensure that clause 12 would not inadvertently allow a mid-term list member who lost their seat at the election, and who enters within three months of polling day to receive two payments.

Deductions from AWOL Members of Parliament

The primary accountability mechanism for members of Parliament is, and should remain, triennial elections. However, I recognise that, in adopting (and substantially increasing) the provision in the Civil List Act 1979 for deductions from members of Parliament who are absent other than in accordance with the Rules of House, Parliament is acting to raise its public standing, and I support it in this endeavour.
 
As clause 14(4) already provides that being absent in accordance with the Rules of the House does not count as being absent for the purposes of a deduction, and that all legitimate excuses for absence will therefore never be penalised, I submit that there is no reason to allow members of Parliament nine unexplained absences each year before imposing partial deductions from their salaries. The law should simply provide that each sitting day that the member is absent in breach of the rules of the House, the appropriate deduction should be made.
 
I also submit that the deduction should be a percentage (currently proposed to be 0.2%) of the yearly salary of the member, not a percentage of the salary of an ordinary member. A member who receives a higher salary (for example, as a party leader) does so because they have greater responsibility. Their unexplained absence from the House is therefore a greater violation of the public trust, and should be censured accordingly. Failure to apply the same level of deduction to all members would involve holding back bench MPs to a higher standard than more senior MPs. The current figure of $283.60 per sitting day may be 0.2% of an ordinary MPs’ salary, but it is less than 0.07% of the PM’s salary. Whatever the percentage is, it should apply across the board.
 
I submit that the figure adopted of a 0.2% deduction per

sitting day is too low. This would be an appropriate figure if the deductions could be made for non-sitting days as well, but as it is not proposed that they should be, the figure should be arrived at taking account of the average number of sitting days in a year. I agree with the underlying policy as proposed by the Law Commission that a member should not lose all their salary, as there is work outside of the House, but the proposal is rather derisory when the number of sitting days is taken into account: a member who improperly absents themselves from every sitting of the House in a given year would still retain over 80% of their salary.
 
There are 96 sitting days proposed for 2012. Given this level, I submit that a deduction of 0.5% per sitting day would be more appropriate – this would see a member who was AWOL lose a little under half their salary. Few employers would be nearly so generous.

Deductions from Suspended Members

Following a submission I made to the 2011 Review of Standing Orders, the Standing Orders Committee unanimously adopted the following:
 
We recommend to the Government that the legislation to replace the Civil List Act 1979 include a provision to apply salary deductions to members who are suspended from the service of the House.
 
The government’s response to this unfortunately occurred after the introduction of the Bill, but it noted that it considered that consideration of such an amendment would be within scope:
 
The recommendation of the Standing Orders Committee relating to salary deductions for members who are suspended can be considered as part of the select committee consideration of the relevant provisions of the Members of Parliament (Remuneration and Services) Bill.
 
I commend the recommendation of the Standing Orders Committee to you, not lease because it is something that many (including the Speaker) already believed happened. The suspension of a member from the service of the House is a rare event; it is also serious, and warrants a deduction at least as serious as that applying to AWOL members. Because this suspension covers both sitting days and non-sitting days, a deduction of 0.2% per day is appropriate.

Record of Members’ Attendance

In order to meet the interests of the public in holding members of Parliament to account, I submit that the Committee should adopt the recommendation of the Standing Orders Committee:
 
We recommend to the House that, when legislation to replace the Civil List Act 1979 is to come into force, a sessional order be adopted requiring the Clerk of the House to record and publish members’ attendance at parliamentary business and approved absences.
 
The public is entitled to know which MPs are in Wellington doing what we expect of them, and those who are not. An attendance register is the least we can expect.

Three-yearly Parliamentary Salaries

I submit that the level of parliamentary salaries should be set once per term, to take effect for the following term of Parliament. I note that section 19(5) of the Remuneration Authority Act 1977 already permits this, and consider it a proposal that is overdue.
 
The setting of parliamentary salaries for the whole of a term is something for which David Farrar has long advocated. I can do no better than adopt the argument he has presented on his ’blog:
 
Every year the MPs go through a self-flagellation when the Remuneration Authority does their annual pay adjustment for MPs. It is either too much, or it is at the wrong time, or it is backdated etc etc.
 
This will always be the case, as MPs getting pay rises during term of Parliament never will be popular.
 
The easy way to solve this, is what I have long advocated – set the salary and associated terms around three months before each election, for the next term of Parliament.
 
So MPs would get elected to Parliament for a term, on a known salary which remains constant during that term.
 
(http://www.kiwiblog.co.nz/2010/12/mps_pay_should_be_constant_for_the_term.html)
 
Given the particular position in which MPs find themselves, with a three-yearly electoral cycle, this is entirely appropriate. Voters would then be in a position of electing members of Parliament, to set terms and conditions for the term of the Parliament.
 
I note that clause 29 already provides that the determination of services under section 18 happens once each term. This could be amended, or a similar clause added, to provide for the determination of salaries and allowances under section 9 also occurs once each term.
 
If this is not adopted, the procedure by which the Remuneration Authority recommends backdating of MPs salary increases should be removed. The Remuneration Authority should be tasked

with starting its consideration early enough that this is unnecessary. If it is failing a statutory obligation to do it by a particular time, you should sack the members and appoint someone who will.

Travel Entitlements of Former Members

I submit that all provision of travel entitlements for former Members should be abolished.
 
The justification for the continuation of this provision is that MPs at one point gave up a salary increase, and received the travel entitlement instead. That three- or six-year period in the 1970s for which MPs were “underpaid” was remedied with above-inflation salary increases, shortly thereafter. This tradition continues apace, which the salary increases of both ordinary members and ministers still exceeding inflation.
 
The vast majority of former members of Parliament who now benefit from this entitlement never suffered the “loss” that justified it. It was never a condition of their terms of employment, and was not factored into salary determinations in the way that MP’s direct travel entitlements were.

It is now 14 years since the entitlement was abolished for newly retiring MPs. Those who have even the remotest claim to have suffered through its removal have now had a minimum of 14 years in which to enjoy it. This is long enough. Whatever loss they may have endured, they have now been more than compensated.

I accept that former Prime Ministers may be in a different category, but consider that their needs are met by the provision of the annuity.

We can be grateful for the service of members of Parliament, and for the sacrifice of their families, but members of Parliament are well remunerated, and have been for a very long time. There is no justification for continuing this perk, and it should be abolished.

Other Matters

Clause 9 – Differing Salary Levels

Clause 9 permits the Remuneration Authority to provide for a different salary to be paid to a member of Parliament based on the electorate the member represents. It may be appropriate for provision to be made for differing allowances to be paid (or differing levels of support provided) to members of Parliament from a large electorate, but it is not appropriate that the salaries should be able to differ, and I submit that the Committee should amend the provision accordingly.

Clause 12(3) – Payment of former Deputy Speaker

Clause 12(3)(a) provides for the persons who hold officer as Speaker and Deputy Speaker on polling day to be paid as such between polling day and the first meeting of the House following the Polling Day.
 
In respect of the Speaker, this presents no problem, however, in respect of the Deputy Speaker, the provision is a misnomer, and will be of no effect.
 
Section 13 of the Constitution Act 1986 provides that the Speaker continues in office until the close of polling day, but it does not provide that the Deputy Speaker does also. This is backed up by Standing Order 29, which provides that the Deputy Speaker (and the Assistant Speakers) only remain in office for the term of Parliament. As the term of Parliament ends at dissolution/expiry, well before polling day, there is no “person who held office as … Deputy Speaker on polling day” to be paid at the higher rate clause 12 envisages.
 
Accordingly, I submit that the words “or Deputy Speaker” should be deleted from clause 12(3)(a), as they are entirely meaningless under our present constitutional arrangements.

Clause 40 – Annuity Payable to former Prime Ministers

While the payment of an annuity to a former Prime Minister may be appropriate, I do no believe it should be paid while that person remains a member of Parliament, or during the three months after a general election in which that person is effectively being paid as one. The salary, allowances, and support provided to members of Parliament are more than sufficient to provide for whatever work they may be undertaking in their capacity as a former Prime Minister.

Accordingly, I submit that that the words “he or she holds an office for which”, and the phrase “(other than the salary of an ordinary member of Parliament) should be removed from clause 40(3).

Clause 42 – Death of a member while in office

Clause 11(1)(b)(ii) provides that a member’s salary will cease when they die; this clause provides that a salary at the rate of an ordinary member of Parliament is payable to the surviving partner or dependent children of that MP for three months.

As clause 12(2)(b) provides for the cessation of the salary payable to former members, the Committee should consider whether it would be appropriate to amend this clause to allow for the continued payment of a salary to a member’s partner or dependent children for the remainder of the three months that that salary would have been paid for.

It is anomalous that the family of a deceased MP is provided three months support if that member, after their retirement from politics, dies one day before an election that they weren’t running in, but receives no support if that MP dies one day after the election that they weren’t running in. The distinction that the Bill draws is without merit.

Conclusion

I am not convinced that we shouldn’t just determine appropriate salaries for member of Parliament, and simply inflation index them. I anticipate such a proposal may fall on deaf ears, and is possibly outside the scope the Bill, but it is nevertheless something that should be considered for the future.

I submit that the Committee should recommend that the Members of Parliament (Remuneration and Services) Bill be passed, with amendment. I look forward to appearing before the Committee to discuss it further.

When you sue someone, you have to serve the first set of documents on them personally - literally hand them to them, or place them down in their presence and clearly bring them to their attention. They have to provide an "address for service" for later documents (usually their lawyer), but for the first set personal service is required, unless you get express agreement (which you often do).

Process serving is something that many young lawyers get to experience. There are times when you need to hire an expert, but a common job for young lawyers, especially in small practices, is to serve proceedings in cases where it won't prove too difficult, and as the tradition is that they get to keep the service fee, it's a nice bonus. Which is nice. I've effected personal service a couple of times. I rang up in advance and made an appointment with both. One was expecting me, and other was away from his office. I read the paper, and a copy of Salient (this one was a staff member at Victoria University), and after spending an hour or so there, returned the following day, during which I walked around the department until I found him (having printed off their photo from the uni website). I don't think they were being difficult, so much as fitting the profile of a stereotypical absent-minded professor.

But, because of parliamentary privilege, service on a member of Parliament can be more diffcult.

In 2003, Race Relations Commissioner Joris de Bres gave a speech in which he compared the European Settlers of New Zealand to the Taliban. Murray McCully took offence, and complained to the Human Rights Commission (of which de Bres was a member) and then to the Human Rights Review Tribunal. As part of that hearing, de Bres claimed that he had a statutory immunity from being taken to the HRRT for what he said as part of his job. Rather than have this complex legal question determined by the Tribunal, de Bres's QC sought to have that legal question decided in advance by the High Court. To do this, the application had be served on McCully, who in his now sadly departed email column, told the story of the young lawyer from local Wellington firm Brandons (don't ask me how I recall this detail because I have no idea), who was tasked with filing and serving the documents. The lawyer went down to McCully's office at Parliament, and although McCully may have been tempted to allow him to serve him in contempt of Parliament, he instead sent the lawyer back from whence he came (there may have been an apology involved), and told him to telephone through, during which a time was arranged for McCully to leave Parliament grounds to be served, which I understand is the usual practice. I understand that the Backbencher is often used, but McCully tells of just going outside the gate in that instance.

Which brings us to Andrew Little and Trevor Mallard, who have recently been sued by Judith Collins in defamation. Collin's solicitor's have apparently written to Little and Mallard asking for their agreement to serve their lawyers, rather than them personally. This is common practice, but as is their right, they are insisting upon personal service. I have never been sued, but as being served is probably the part of it that is the most fun, who can blame them?

The Herald reports:

Mr Little said the minister would need to hire process servers to track him down outside of parliament grounds and issue him with the papers.

And Stuff notes:

Little said if Collins wanted to pursue the matter she would have to arrange a ''process server'' to track down the MPs and physically hand them papers.

''The letter is somewhat threatening. It says having to serve you can be inconvenient because these guys tend to be pretty thuggish kind of characters.''

Papers cannot be served on MPs in Parliament so they would have to be tracked down outside of their workplace.

I would bet quite a lot of money, at quite poor odds, that while the letter might say that personal service can be inconvenient (and it might be somewhat annoying) it will say nothing about thuggish characters, and I wonder whether the transcription of Little's comments could have done with being someone differently punctuated, in order to show that the thuggish character line was Little's interpolation. But I am more interested in the claim than MPs cannot be served legal process in Parliament.

Mostly, because it simply isn't true. There is a limitation, but it's not nearly as extensive as Andrew Little appears to believe. Standing Order 407 lists as example of a contempt of Parliament:

(c) serving legal process or causing legal process to be served within the parliamentary precincts, without the authority of the House or the Speaker, on any day on which the House sits or a committee meets:

The House is currently in recess. And even when the House is sitting, or a committee is meeting, the Speaker can still give permission for service to be effected (he might, for example, allow it on a day when no committee that member is on is sitting, or on Tuesday morning before the House sits, and during which time select committee's rarely meet).

Of course, if some recently graduated lawyer turn up at their office unannounced on a sitting day, with no idea about Parliamentary Privilege they should feel free to make fun of them in an email column, but unless they're planning on being unfindable for next couple of years, it might be better to get it over with. If the case is as likely as they claim to prove embarrassing for the Minister, one might wonder why they don't want to bring it on.

Yesterday - after a bit of effort - the House of Representatives held a conscience vote on the Gambling (Gambling Harm Reduction) Amendment Bill.

When the House abandons its usual practice of voting upon party lines, or at least when it has in the past on more controversial matters, there has been some debate over whether MPs should be exercising their consciences, or the consciences of the the people they represent. And for those who don't directly represent people - list MPs - some have raised concerns about whether they should be voting at all.

I have always considered the matter admirably simple.

The reason we have political parties, and the reason our political parties take party positions is that that it enhances democracy. When parties take collective positions, voters are better placed to decide how to cast their votes in order to see their desire enacted into law. Parties seek mandates to enact policies, and the voters who vote for them give them a mandate to vote accordingly.

Now, you may feel that every MP should exercise personal judgment and cast a personal vote on every question. Or you may feel that every MP should ignore their personal judgment and cast a representative vote (what their constituents would want) on every question. But this isn't what conscience votes are about.

The philosophical underpinning of the conscience vote is that on some issues a person’s morality is so strongly in play that they should be permitted to be guided by it, rather than public opinion, or collective decision-making processes. On conscience votes, MPs don’t represent the consciences of their electorates, but act according to their own consciences. Delineating between list MPs and electorate MPs on these issues makes no sense – on a conscience vote no MP is representing anyone other than themselves.

Conscience votes deal with laws that touch upon matters that that people generally would agree it is wrong to force someone to support a view that is not their own. Few would consider it immoral that a member of Parliament might have to vote in accordance with the majority of their party caucus on whether there should be a capital gains tax, despite personal opposition. Although few (if any) votes are cast via direct representation, few would consider it wrong if a member of Parliament might have to vote in accordance with the wishes of their local community to allow the building of a sports stadium they'd personally opposed.

But on a very few issues of morality, it is wrong, indeed, it is unconscionable, to force someone to vote contrary to their views. A conscience issue is one that a party considers it would be immoral for us to collectively decide on a view and have everyone vote for it. For us as a society, a conscience vote should be something that we feel an individual MP's beliefs should not be subjugated to majority concerns.

For example, it is unconscionable to force someone to support legalisation of abortion if that person believes abortion is murder, even if their party supports it, and even if the public supports it. It is wrong to force someone to vote for the death penalty if they believe that all life is sacred, and even if we overwhelmingly support the death penalty, we cannot expect that someone who doesn't should vote for it. In short, MPs should not be put in the position of voting in a way that they consider might damn them to Hell.

There is a distinction between a personal vote - which is one cast by an individual MP - and a conscience vote. A conscience vote should be an exercise of the conscience - on something for which there is no democratic accountability.

The issues on which our House of Representatives has historically held conscience votes are matters that have historically been moral issues: abortion, the death penalty, euthanasia, prostitution, gambling, alcohol, and Sunday and Easter trading.

Some of there are still clearly moral issues for a great many people, but I'm not sure all of them still are. A the height of the prohibition movement, alcohol as a social and moral ill was a matter not unlike slavery, or the death penalty – and it was properly considered morally wrong to force someone to vote for liberalisation of alcohol laws when it might attack their moral core. about something many considered the demon drink. For many, abortion is still like that, and prostitution is like that for some, but alcohol is like that for almost no-one.

Alcohol prohibition may be a moral issue for some, but other aspects of the regulation of alcohol have long ceased being moral questions. Many consider alcohol a social ill, or even a moral one, but how many people consider the age at which one may be sold alcohol to be a moral question?

So why is it that alcohol votes are not now subject to the same democratic processes as votes on education policy or tax? Why do MPs, in respect of the alcohol-purchasing age, act according to their “consciences”, when on most other issues of social and criminal justice policy they vote according to agreed party policy or public views?

There may be more pragmatic reasons why a party may choose not to whip a vote - it might cause party disunity, or annoy a great swathe of the voting population to adopt a party policy position - but the idea that alcohol votes are an exercise of conscience is a pretense well past it's use-by date. It may now simply be an issue on which MPs have unusually strong personal views, but I doubt any of them is worried about going to Hell over it, rather, many are motivated by the same instincts they have over much other legislation: perhaps a view of the importance of personal responsibility, or a desire to minimise social harm. But in these respects, questions around alcohol aren't substantially different from many other matters, from prison policy, to road safety. If we want MPs to exercise personal judgment over this issue, rather than collective judgment, then there are dozens of other issues of social policy we could properly expect the same. It would certainly make the House a more interesting place.

In advance of the tri-ennial Parliamentary review of the election, the Electoral Commission has released its Report of the 2011 General Election and Referendum.

There's some interesting reading in it: for electoral law nerd like me, but also of more general interest. The Commission notes, for example, some of the matters it referred to the Police:

• two Broadcasting Allocation matters (plus the PM's hour)
• 63 cases of dual voting/personation
• nine candidates for failure to file election expense/donation returns (which the Commission says should be upgraded to a corrupt practice)
• 12 election advertising matters
• 11 election day concerns, including: one delivery of a flyer; five social media; one election day Broadcast; one attempted assault of an election official and damage to a polling place; one assault of an election official during advance voting; one attempted theft of a ballot box; and one display of a billboard.

The Commission notes:

Some electoral matters referred to Police are straightforward, such as dual votes or failure to file returns, and are dealt with in a timely manner. Some are more difficult and complex and the Commission is concerned about the priority the Police seem able to accord these referrals.

The Commission also makes a number of recommendations on a range of other matters, some technical, but many not. For example, it has proposed abolishing the five-yearly Maori option, and allowing those of Maori descent to change electoral roll once each Parliamentary term.

Public submissions on the Parliamentary review closed on Friday, and for those interested, my submission is copied below (although, if anything, you'd be better reading the Electoral Commission's report!). Don't worry if there's something of particular import you'd like to speak out about. The review is just the first step. The Justice and Electoral Committee will gives its view, and the Government will respond to it. Any law changes it might agree to as a result of this will go through the ordinary legislative process with further Select Committee consideration.

Submissions to the Electoral Commission's Review of MMP can still be made. The Commission is welcoming submission on that over here.

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Introduction

My name is Graeme Edgeler, and I am a Wellington lawyer with a particular interest in electoral law. I can be contacted at Graeme.Edgeler@gmail.com.

I thank the Committee for the opportunity to make a submission on the Review of 2011 General Election, and look forward to presenting my submission in person.

I am grateful for the Report of the Electoral Commission on the 2011 General Election and Referendum. It raises a number of issues I had intended to raise, and addresses other matters on which I have some comments.

Timing of the Maori Option

The Electoral Commission has recommended that the post census Maori option be removed, and that people of Maori descent should be permitted to change between the Maori Roll and General Roll (or vice versa) once per term.

I do not support this proposal. Such a move would create an unequal electoral system where some voters have a greater opportunity of influencing elections than others.

Many people opposed to the continuation of the Maori seats do so on the basis that the seats provide a discriminatory privilege to a class of people based on, effectively, a racial characteristic. It is a useful argument to counter this view that the Maori seats are formed on the same basis as general seats, and provide little substantively additional power. Allowing someone to switch between the two rolls at any stage during the electoral cycle would permit someone to change electorates with the intention of influencing the result: for example, to vote in a by-election, or because the polls suggest that the general or Maori electorate they may be in will have greater influence over the result.

A major rationale for the continuing retention of the Maori seats is that people of Maori descent form a distinct group worthy of representation in the New Zealand Parliament, and that those whose Maori identity manifests in a particular way should be able to exercise this collectively with others of Maori descent. This proposal undermines this argument. If it is adopted, a choice to be represented through the Maori roll will be much more able to be exercised for transient tactical reasons, and not as a choice expressing Maori identity.

I support the retention of a Maori option alongside the redrawing of the boundaries. If it is felt that people of Maori descent should be provided one option per term to change between the Maori and General Rolls, that process should only be adopted if the number of electorates are recalculated and the boundaries are also redrawn each term after that option is held.

The nomination deposit

I believe that Elections should be fought on a level playing field.  The regime by which candidates and parties receive their nomination fees back if they receive a certain level of support is unfair. It is effectively a tax on small parties, which must spend many thousands of dollars to contest the election, which the major parties ultimately get to do for free.

I submit that the nomination fee should be non-refundable. If parties do not wish to face the cost of nominating candidates in this way, an alternative means should be provided of showing local support: perhaps allowing that a candidate who’s nomination has been seconded by 50 or 100 voters in the electorate to pay no fee. Not only would this level the playing field between all candidates and parties, it would provide a positive encouragement to candidates and parties to engage with the community at a grassroots level.

Continuous disclosure of party donations

The disclosure threshold for party donations is now $15000. Parties are requires to constantly track donations made at levels lower than this to ensure that they can properly declare accumulated donations at this level, or at the higher $30,000 level at which disclosure must be made within 10 working days.

I submit that all donations over the disclosure level should be disclosed within the 10 working day timeframe. The imposition this would place on parties is not very great. There are not a great many donations between $15000 and $30000, and parties are already keeping track of them anyway. There seems to be very little – if any – reason why it is so important that the public is informed about the identity of someone who has donated $25000 to a party, but is so unimportant that they should only be told perhaps six months after the donation was made, and well after the election.

Donations protected from disclosure

The regime by which donations may be made through the Electoral Commission, while serving a legitimate purpose, should be abolished. It suffers from the same concern that is currently alleged John Banks’ 2010 mayoral campaign may have. A donor can approach a political party, ask to make a donation of $40,000 without disclosing it, and be told that the donor of donation that high must always be disclosed, unless the donation is made through the Electoral Commission. When a $40,000 donation arrives the following week through the Electoral Commission, the party gets to declare it as anonymous, but is it really? And even if it is, the perception remains that it might not be, which is itself damaging to the political system.

Enforcement

I echo the concern that the Commission raises in respect of the priority which the Police seem to accord to some investigations of alleged breaches of electoral law, whilst the investigation of simple breaches appears to work well, they seem to take an inordinate amount of time with others. It is time for someone else to be given responsibility for prosecuting electoral offences.

It would also be appropriate for political parties to be able to be charged with electoral law offences. While there will be occasions where an individual such as a party secretary is the appropriate defendant, in some cases it will be more appropriate to charge the party itself, without having to sheet home personal responsibility to a single individual.

Minor Offences

Related to the issue of enforcement is the issue of minor offending against various election rules. Much of the offending considered by the Electoral Commission is very small, and involves no attempt to obtain advantage or deceive voters. An expense return filed one day late, or an electorate newsletter that carries the name and photo of an MP but not a full promoter statement will not usually be that bad. While it is appropriate that the minimum rules are upheld, in many instances a criminal charge, or even a police investigation, will seem overkill. Decisions not to prosecute can however seem like favouritism, or having political motivation. This can undermine public confidence in the administration of elections.

I submit that consideration should be given to making some of the offences in the Electoral Act infringement offences, rather than summary offences. In some instances, it will be appropriate to split a current offence in two: an infringement offence where there is a simple breach, and a criminal offence where there is an intention to mislead or gain a corrupt advantage. For example, it might be appropriate for the following to be infringement offences:

• the simple failure to include a correct promoter statement on an election advertisement;
• the late filing of a donation or expense return.

While similar actions could be considered criminal if:

• a promoter statement was either false or left off completely, with the intention of deceiving voters;

• the late filing of a donation return was deliberately done with a corrupt motive (for example, avoiding disclosure of a large donation until after the election).

As with other infringement offences (like speeding fines or parking tickets), a person aggrieved with being ticketed could challenge the ticket in court.

The Broadcasting Act

I have submitted in support of changes being made to the Broadcasting Act to ensure a more level playing field, on a number of occasions in the past. The current system in which the level of public broadcast funding a party receives is also its spending cap is indefensible, with nothing to commend it. Banning your political opponents from advertising is about as low as things can get in a democracy, and with the limits the funding allocation imposes on minor parties (especially those outside Parliament), we’re perilously close to this.

It seems this has fallen on mostly deaf ears. If this continues, then at the very least this Committee should recommend that sub-paragraph (ii) in paragraph (c) of the definition of election expenses in s 206 of the Electoral Act should be deleted. Even if the law must allow the major parties a massive advantage in broadcast advertising, overall spending limits on each political party should be identical.

A Referendum Act

The process by which the referendum was conducted, including the disclosure of advertising and spending limits, etc. appears to have been appropriate.

I submit that the underlying structure of the Electoral Referendum Act should be adapted into a permanent law, under which all future national referendums can be conducted. If Parliament is considering holding future referendums (whether binding or non-binding) it should not have to pass a law setting out the mechanics of voting (the writ, voting, counting, advertising, registration, disclosure etc.) each time, it should simply be able to pass legislation with a contingent commencement that applies the mechanisms of a Referendums Act.

Other Electoral Commission Proposals

Party Registration

The Commission has proposed that parties should be required to have at least 500 financial members who are enrolled to vote, instead of the current requirement for there to be 500 financial members who are eligible to be enrolled to vote. It asserts that it is unaware of the policy rationale behind the current law.

The policy rationale behind allowing a party to register if it has 500 members who are eligible is that it is something that is within the knowledge we can expect of a party secretary. Each year, the Party Secretary is required to make a declaration stating that the party is still eligible to be registered. A party secretary is in a position of knowing whether the party still has 500 members who are eligible to enrol (they will know names and ages, and addresses etc.). It places a far greater obligation on a party secretary to know that no member whom they were counting has had their enrolment lapse.

The Commission has also proposed that an application fee for applications to register a party should be imposed. If there are additional costs imposed on the Commission in its processing of party registration, this may be appropriate, but the rationale offered by the Commission is misguided. Even if having a minimal fee may help “bring home to potential applicants that it costs money to meet [the legal requirements of being a registered party]” this is not a basis on which the government should ever charge a fee. A fee is appropriately charged by the government for a service if it incurs a cost that it considers is improper for the taxpayer to bear. There can be no other proper basis.

Logo Registration

I believe that candidates for unregistered parties should continue to be able to have a logo next to their name on the ballot. The Commission’s rationale that removing the logos of unregistered parties would simplify the information provided to voters on the voting paper is unconvincing. If the ballot is considered too “busy” then removing the logos of all parties, or prohibiting all candidates from having logos would better solve it.

Particularly if the review of MMP results in the removal of the one-seat rule, the incentive for some minor parties to continue to contest the party vote may diminish. There is no reason that the law should preclude a party forming with the intention of only contesting the electorate vote, and then operating in electorate races on the same basis as other parties.

I recognise the Commission’s concern about the number of spent logos that are currently on the register. The solution is not to ban all logos of unregistered parties, but to allow the Commission to remove logos if they go unused: if a general election passes and an unregistered party that has a registered logo has not nominated any candidates, the Commission should be able to remove it logo from the register.

I recognise that there is a cost involved to the Commission of registering and de-registering logos (Gazetting, and publicising the logo, for example). A fee for registering or changing a logo may be appropriate.

I would finally add that the law should permit a party that is seeking registration as a party to concurrently seek to have a logo registered. The current law, which effectively requires a second application once the first one is accepted is unnecessarily cumbersome.

Judicial Recounts

The (small) possibility that an election petition may undermine an election result is something that I have commented on in the past. I welcome the Commission’s proposal that the law be changed to ensure that this cannot happen.

I proposed to the Electoral Commission’s review of MMP that, in the event that an election petition at a general election successfully overturned the result of a seat, that the Court of Appeal should be able to reallocate the list seats, in order to ensure that the result of a general election are reflected in the resulting Parliament. I arrived at the proposal to have the matter referred to the Court of Appeal arose because of that Court’s powers in respect of election petitions respecting the allocation of list seats.

I consider the Commission’s suggestion of the High Court referring the matter back to the Commission for a reallocation to be superior. A party will still have the option of pursuing an election petition relating to that allocation if necessary, but there is no reason to require it.

The Commission’s proposal is not expressly limited only to general elections, and appears on its face to allow that the Electoral Commission could be asked to re-do a list allocation after a by-election (which, if the one-seat rule is retained, could be interesting to say the least). I do not anticipate that the Commission was actually proposing this, however the law should be made clear that a reallocation would only be permissible after an election petition arising at a general election.

Failure to file an election expense or donation return

When I first read the Commission’s recommendation, I was surprised, as making the non-compliance with these requirements an imprisonable offence seems excessive. I then considered the rationale that it offered, which is compelling. The failure to file an election expense or donation return deprives voters of information in exactly the same way as the filing of a false return does, and undermines the purpose of election finance obligations in exactly the same manner.

It would be appropriate, however, to distinguish between a total failure to comply with the obligations, and merely delayed compliance. The current rules criminalise a failure to file a return on time, but do not distinguish between a late return, and a non-existent return. A candidate or party secretary who files a return a few days late without a reasonable excuse should be recognised as breaking the law, but this should not be considered a corrupt practice. Indeed, as I note above, it may be appropriate to recognise a late filing which has had no real effect on transparency as an infringement offence, punishable by a spot fine (like speeding, rather than dangerous driving).

Election advertising

I support amendments to the law to bring the prohibitions and exemptions in the Electoral Act and Broadcasting Act into line. If some publication is exempt from regulation as an election advertisement, it should also be exempt from regulation as an election programme.

Election day “advertising”

I have always liked that scrutineers are identifiable by their party, as I think it adds to the obligation on them not to ‘misbehave’ in a polling place. I know that if a scrutineer was to ever exercise their rights under s 166 of the Electoral Act in respect of my vote, I’d want to know what party they represented in order to ensure that party never got my vote ever again. I also think that it is important that voters know who the people in a polling booth are, so that if they need assistance, they won’t unknowingly approach a party member. A scrutineer badge goes some way to this, but many voters will not know what a scrutineer is. A rosette or lapel badge is more easily recognisable.

I recognise, however, that some voters may not like there being any party paraphernalia in a voting booth, or may be intimidated by it, and am content to rely upon the Commission’s experience in recommending a balance.

I would note that if the Committee is considering banning the display of balloons on election day, it should consider whether such a ban would be a reasonable and proportional limit on free speech.

Conduct of Referendums Generally/Electronic Voting/Turnout

The Commission has proposed that future referendums should be conducted by postal ballot. It has also recommended further consideration of Electronic voting.

I oppose such measures. The shared experience of voting is an important part of fostering a democratic society. The sense of democracy as a community undertaking would be lost if we were able to stagger the election over two weeks. I very much doubt there would be more than a minimal effect on voter turnout, and I wouldn’t be surprised if the decline in civil society I think it would precipitate actually lead to decreased interest from the politically disinclined.

We vote because we think we should. Others vote because they see us vote and think they should. We vote because when we were younger our parents took us with them when they were voting and it was solemn and seemed important. We vote because there’s one day every three years when voting is what you do – what everyone does. And even though this election saw a reduction in turnout, making the day less special is not going to turn this around.

Conclusion

Thank you again for the opportunity to file this submission, and for the opportunity to present it in person. I look forward to reading the Committee’s report, and the Government’s response to it.

From the perspective of a lawyer, among the words most misused in the news media may be "loophole". It tends to be used to describe almost any piece of law that a journalist, or an interviewee, thinks is inconvenient. I often think, after hearing it used, "that's not a loophole, that was a design feature - a deliberate choice made because the alternative would be stupid". I think once I even thought "I submitted on that bill, and the reason that is that way may be because I asked them to change it!". It happens a lot, but one that particularly stands out was an occasion on a TV news show where the fact that someone's past conviction couldn't be clean-slated was a loophole. The person had received a sentence of imprisonment, and Parliament made an explicit decision to exclude such sentences from being clean-slated. Not listing sexual violation/rape in the list of sexual offences to which the Clean Slate law may never apply may be a loophole, but that wasn't.

But sometimes "loophole" is a perfectly appropriate to a law, and the donation regime in the Local Electoral Act is a wonderful example.

The rationale for allowing anonymous donations is pretty simple. If a politician doesn't know who gave them money, they can't do that person (or business, or union or whatever) any favours.

The problem arises when a donation isn't so much anonymous, as secret: known to a candidate, but kept from the public. This was the case with donations, for example, that National used to arrange through the Waitemata Trust. Someone would talk to someone in the National Party - perhaps even the leader - about making a donation, and that donor would be advised to give the money to the Waitemata Trust. Every so often, the Trust would give a bunch of money to National, and it would be declared as the donor. Party leadership often knew who was going to give the Trust money. The Trust could even tell the Party exactly who had given it money, but the donation would still properly be declared as coming from the Trust.

Problems like this one have been fixed at a National level, first with the Electoral Finance Act, and then amendments to the Electoral Act that largely copied over what that now-defunct legislation did.

Election spending and donation rules at the local government level haven't gone through that process however, and the obligations on candidates are either derisory, or unclear. I've re-read the Local Electoral Act a few times over the last few days, and reached a different conclusion each time over what obligations it actually imposes.

What follows explains what I believe is the generally-accepted approach to the obligations on candidates under the Local Electoral Act 2001 to donation disclosure:

• If a candidate knows who made a donation over $1000, they must declare it, and the donor's name and address.
• If the candidate receives a donation over $1000, and doesn't know who gave it to them, they must declare it, and record that that donation was anonymous.

• The candidate must actually know, it is not enough that they suspect a donation came from a particular person.
• That the campaign manager of a candidate knows who made a donation, but they don't tell isn't enough, because the candidate does know.
• If the bank statements of a campaign lists the drawers of various cheques, so that anyone who looked at it would know who made particular donations, but the candidate never looks, this can still count as anonymous, because the candidate doesn't actually know. This still applies even though the candidate could look at their bank statement after they filed their return, as the return would still be accurate.
• If a candidate knows a person made a donation but does not know how much that donation was, the donation will still be anonymous. A candidate could be told by someone who does know "Ring up Sam, and thank her for the donation", and still be able to lawfully declare Sam's donation as anonymous.
• If a person tells you they're going to make a donation of $40,000, and you tell them to send you some money the next week, and you receive a bank cheque for $40,000 the following week, that donation can still be listed as anonymous, because while you may be almost certain that that money came from that person, you do not actually know it did. You just suspect.

I have no idea about how much John Banks knew about the donations his mayoral campaign received from Kim Dotcom. The police will be able to investigate and get some idea. Hopefully.

It may be that they reach a pretty firm conclusion that something has happened, but still not feel they can prove actual knowledge. If so, that will be the end of it. There are two offences: the serious one - which John Banks will certainly wish to avoid - involves filing a return knowing that it is false - this carries a maximum term of imprisonment of two years, which is enough (whatever any actual sentence may be) for an MP to lose their seat. The other offence involves filing a false return without knowing it was false. Such a charge seems unlikely in these circumstances. If Banks can legally claim that the donations are anonymous, his return will be accurate, and if he can't, then it will likely be because he knew who made them. And even if such a charge could be made out, there is a six-month time limit to lay the more minor charge.

As I suggested earlier, the above interpretation isn't the only one that can be applied to the obligations in the Local Electoral Act. The disclosure obligation is:

every candidate must [set] out ... the name and address of each person who made an electoral donation [over $1000] to the candidate and the amount of each electoral donation [over $1000]...

You could read this as an absolute requirement. If Kim Dotcom was a person who made an electoral donation donated to your candidacy, he must be listed. That would be a pretty big re-interpretation.

Alternatively, you could read this as requiring:

• a list of all donors and their addresses; and
• a list of all donations, but cross-referenced in no way to those donors (Nancy, Peggy, John and Susan donated to me, and I received donations of $1500, $3000, $4500 and $1.1m)

It could even be interpreted as really lax. It's possible to read this as allowing a person who received four $25,000 donations, and who knows the names of the four people who made those donations, but who doesn't know which person made which donation to declare them all as anonymous: "Was the donation on the 12th from Sam, or Max? I don't know, I could not tell you, without checking, which I haven't done, who made that donation.".

So yeah. A loophole.