New Zealand should fix its election date in law. Otherwise, John Key needs to tell us when the 2011 election will be held ... and soon.

On Monday I had the pleasure (and I'm not being sarcastic here - it genuinely was a pleasant experience) of talking to Parliament's Electoral Legislation Committee for the best part of an hour about the bills to set up the 2011 referendum on MMP and to reform campaign funding practices.

I was speaking to my written submissions, which are available here. A couple of the points that I raised then caught some attention in the media. One was my (probably futile) recommendation that there be spending caps on everyone wanting to campaign in relation to either the referendum or the general election in 2011. The other was my call for the election date to be fixed in law.

With respect to this latter issue, what wasn't made so clear in subsequent reports was the reasoning behind the suggestion. After all, the question of when an election is held seems (on the face of it) to have little to do with how much people can spend on campaigning. So what gives?

In New Zealand, we traditionally have limited the amount that candidates and (since 1995) political parties may spend on advertising their campaigns in the 3 months prior to election day. The Electoral Finance Act 2007 extended this "regulated period" out to the beginning of the election year - as well as putting limits on what so-called "third parties" (i.e. non-candidates or parties) could spend on election advertising. But following the 2008 election, those new rules were quickly repealed by all the parties in Parliament (except the Greens) - raising the question of what rules we should have instead.

I've posted previously on the Government's initial proposals for change in this area. What wasn't included in those proposals was any suggestion that the traditional 3 month regulated period would be changed. But when the Bill entered the House, it contained a new clause proposing to change the regulated period so as to prevent it from applying retrospectively.

(Rather than try my own explanation of how it works, I'll just pinch David Farrar's: "The bill defines the default day (with the regulated period starting the next day) as three months before the latest possible date an election could be called. If the PM announces an election date prior to the default day, then the regulated period starts the day after the PMs announcement, unless the announcement is made more than three months before the election, in which case it is from three months out.")

I can see why this change got made. The problem with applying a three-month period of regulation pre-election day is that elections in New Zealand often get called with less than three months notice, meaning that advertising spending that took place before the election was called suddenly gets deemed to be an "election expense". In the past, political parties have been able to manage this problem (as they have spending caps in the millions of dollars), while candidates also have survived (albeit with a bit more difficulty, given their quite tight $20,000 advertising limits).

But as the new Bill proposes to require "third parties" to register before spending more than $12,000 on election advertising, they potentially could be stung by having their advertising spending retrospectively deemed to be an election expense. For example, let's say Forest and Bird spent $50,000 on urging the public to pressure the Government not to mine National Parks a couple of weeks before an early election was called. That spending subsequently could be deemed to be an "election expense", and thus Forest and Bird will have committed an offence by undertaking it without registering with the Electoral Commission.

Furthermore, there are whispers that the regulation of parliamentary funding finally is to be brought into line with the regulation of general electoral spending  - meaning that MPs could find their routine use of things like their communication budgets to communicate with their constituents suddenly get deemed an "election expense".

So in order to avoid such unfair or unforeseeable consequences, the regulated period will be made purely prospective in application. All well and good ... except that it isn't. Here are the problems.

First, where an election is held at the "usual" time in November, the particular way that the regulated period is defined under the current Bill will in practice lead to it becoming much shorter. So candidates and political parties will be able to spend as much as before on their campaign advertising, but over a shorter period of time - which is the equivalent of substantially loosening the spending controls on these participants.

I don't think that's what the Government intended. At least, I hope it's not - because to do so would be contrary to the views of the majority of people who submitted to the electoral finance reform consultation process. And the problem can largely be fixed by deeming "default day" to fall 2 years, 9 months after the last election day (rather than 90 days before the "last possible day" for an election). So if that were the only issue involved, it would simply be a case of substituting a new definition.

But the bigger problem arises where an early election gets called at relatively short notice (as happened in 2002 and 1984). Because here the "regulated period" will start only when the election is called - which in 2002 was 46 days before election day, and in 1984 was a mere 30 days in advance. Furthermore, the fact that only the Prime Minister and his (or her) party knows when the election will be called, and thus the regulated period begins, confers a considerable potential advantage. The incumbent party could engage in a swift, expensive advertising blitz, then call an early election and thereby restrict how much the opposition can spend in response (while still being able to spend up to the cap itself).

Which is where the idea of fixing the election date in law comes in. For if the election day was specified in advance for all to see, with a fixed 90-day/3 month period of regulated spending preceding it, then any partisan advantage would be nullified. And why should the Prime Minister even have the effective power to decide what day we get to vote on? (In formal terms it is the Governor General who dissolves Parliament and calls an election, but by constitutional convention he or she only will do so on the advice of the Prime Minister.) It seems more a hangover of practices past than a rule that has good reasons to recommend it.

Furthermore, New Zealand law already places limits on when an election may be held. Under the Electoral Act 1993, s.139(1)(b) it has to be on a Saturday. So why not go that extra step and say not only that it must be a Saturday, but that it must be this particular Saturday?

That, then, is the reason for raising the issue of fixed election dates in the context of campaign finance reform. I happen to think the idea is a good one in any case, for reasons much like Colin James outlined here. But given the concerns that inevitably get created when the Government is proposing to change our electoral finance laws in a way that might serve its own interests - concerns we've had enough of after the whole Electoral Finance Act 2007 saga - the reasons for fixing the election day have just gotten much stronger.

Of course, there is another way that any suspicions could be put to rest. If the Electoral Legislation Committee decides not to recommend fixing the election date in law, and decides to stick with a definition of the regulated period that begins with the Prime Minister's announcement of the election date, then John Key could end any fear that he intends gaming the system by announcing the 2011 election date during the Bill's second reading debate. That would trigger a regulated period beginning 90 days/3 months before that date. And it would mean everyone would start that campaign on an even footing.

Comments (42)

by stuart munro on July 14, 2010
stuart munro

Quite right, and four yearly elections Clark mumbled about would also save the public money and grief.

Letting incumbents choose election dates subordinates representation to factional advantage - it's not appropriate.

Here in Korea, the president gets a five year term - and that's his one chance to shine, he cannot stand again. Given the lacklustre performance of NZ politicians, limiting terms would be a great public service. They should give the public the gift that money cannot buy - their absence.

by Chris de Lisle on July 14, 2010
Chris de Lisle

If elections were fixed, what would happen if a coalition broke down and no one could cobble together a new one? If the next election was years off, Parliament might not be able to do anything and the Government would be stuck in the caretaker convention and unable to do anything. (I suppose that the cynical might say that that would be the best government we might ever have)

What happens in Korea and other places where they already have fixed elections?

by Andrew Geddis on July 14, 2010
Andrew Geddis

Chris,

My solution would be to only allow a deviation from the fixed election date where the House votes in favour of a resolution allowing such a deviation. So where a coalition broke down/the government lost the confidence of the House, it would be for the House to resolve the issue by either (1) forming a new governing arrangement, or (2) voting to hold an early election.

Of course, this would could still allow a government to "game" the process by using its majority in the House to vote for an early dissolution (or, alternatively, to manufacture a "crisis" that only can get resolved by a vote for an early election). However, it would have to be done out in the open, get debated in the House, and voted on by MPs. I suspect this transparency in the process would be a significant disincentive to trying it on.

By the way - it isn't just Korea that has fixed election dates. Canada has them, New South Wales has them, and the UK is moving to adopt them. We're becoming the odd ones out!

 

by Chris Diack on July 14, 2010
Chris Diack

“If it is widely, even if wrongly, believed that election related spending may influence the outcome of the vote and if there should be a significant disparity of spending in favour of the side which actually wins the referenda then the fairness of that outcome will be widely questioned."

This is nonsense. Why regulate this on what you essentially concede is an irrational basis.

What is the mischief you are seeking to remedy? As someone advocating this regulation don’t you have an obligation (greater that pandering to a prejudice) to outline the evidence.

Looks to me as if the MMP referendum simply isn’t an issue with voters. Best evidence suggests that campaign activity (and therefore money raised to pay for it) only makes a difference on the margins. Why would money be attracted to a referendum campaign where a marginal difference won’t carry it one way or another. If someone is capable of amassing wealth why would they be irrational in deploying it in political causes? And if they are in irrational in political spending where is the evidence that voters reward this. I suspect the more relaxed voters are about the current electoral system more suspicious they would be of big spending on the issue.

And look at the line of argument. Irrational spending caps on parties and candidates necessitate irrational spending caps in referendums and for non candidate non registered party speech.

You concede this point. Turning oneself inside out on the retrospective re characterisation of spending is caused by trying to extend a hopeless regime to non candidate non registered party speech.

There is not much evidence anywhere actually that voters regard their political system any more or less fair or transparent despite the variety of different campaign finance regimes.

by stuart munro on July 15, 2010
stuart munro

@Chris,

I am not sure we may depend upon Andrew's point being an assertion there, it may be that he accepts it because the real argument lies beyond it:

If a substantial number of people are concerned by the propriety of electoral spending, then it is appropriate to regulate it, to increase confidence in the democratic process.

Of course any Green voter who followed the polling prior and subsequent to the Exclusive Brethren/ Brash/Key leaflet campaign could tell you that spending can and did radically alter results. The Labour party however, being morally and intellectually bankrupt, whitewashed the affair, which should have been the subject of the most rigorous and scrupulous inquiry that could be assembled.

 New Zealand's most tainted elites want open slather on electoral spending, because they believe it will serve their interests. This is why open slather will likely reduce confidence the electoral process still further.

NZ MPs are presently between child molestors and telemarketers in the popularity stakes - less loved than the former, but more popular than the latter. I am sure they are striving even now to usurp the position of the telemarketers.

by Andrew Geddis on July 15, 2010
Andrew Geddis

Chris D,

Where is the evidence that bribery actually works to alter election outcomes? Should we, in the absence of such evidence, remove the offence of bribery on the basis that if someone wants to be so irrational as to try to buy votes (and others wish to sell them), then it's simply a case of "no harm, no foul"?

Now, I hasten to say I'm not directly equating advertising spending to bribery. I rather use the analogy to show that we already regulate elections not on the basis of what can be demonstrated to change the outcome, but on the basis of what people think helps guarantee a "fair" outcome. My claim then is that in NZ's cultural environment, an election process (or a referendum process) that sees unrestrained spending on one side or the other will be regarded as "unfair" and less deserving of respect/less acceptable in outcome. Now - that's simply my reading of "what most Kiwi's think" ... I may be wrong about it, others may have a different opinion, etc. But surely I'm entitled to my opinion on that point without being castigated for "pandering to a prejudice"? Or should I instead form a group designed to educate people out of their silly, uniformed, wrongheaded preference for a measure of equality in political voice?

Finally, if election spending really is irrelevant to election outcomes, then isn't limiting it is the equivalent of prohibiting people from campaigning in Klingon? Maybe not the most pressing problem, but so what if a few rather silly people can't exercise their particular odd little foible? Aren't there more important threats to democratic values to fight against here ... like attempts to prevent prisoners from voting? After all - that measure has an immediate impact on the most basic democratic right of far more people than the limit on large-scale election advertising spending ever will. Surely a proponent of important democratic values like yourself should be crusading against that measure, rather than the functionally irrelevant issue of campaign spending?

by toad on July 15, 2010
toad

@ Chris Diack

"Looks to me as if the MMP referendum simply isn’t an issue with voters."

So how is it that the Bill to implement the referendum attracted over 1100 submissions, Chris?

 

by Dr Jon Johansson on July 15, 2010
Dr Jon Johansson

Andrew - It is virtually impossible to quantify the impact of money of campaigns, not least because there are so many variables in play that one can never isolate 'money' as the best explanatory variable for any given election result. This difficulty probably explains why Paul Quinn has frequently posed the question to submitters. It's a very difficult one to answer.

Yet in political systems where campaign finance rules are wide we see candidates attracted to raising money like junkies looking for their next fix. While in the US last year I read that in the 2004 campaign season incumbents raised $428 million while all their challengers raised $26 million. Incuments would seem to think access to money important. So too, presumably, did those donating it.

Because of the difficulty discussed in this thread the point I made in my submission was that the effects of unfettered money for campaigning only had to influence one election result (like what could of happened in '05; and, please, let's NOT rely on the media to unearth any attempted malfeascence) or one referendum to forever change the nature of our democracy. Given that risk, no prudent government that took its role as custodian of our democracy seriously should consider having no caps on campaign spending. It is rarely acknowledged - certainly not by our crusading Herald during the EFA fiasco - that the Royal Commission argued quite persuasively back in '86 that if there was one area where we the public should willingly cede some of our freedom of expression it is around how we elect our governments.

I suspect that if there is compromise all round, not least to give the governing party some cover, we may yet some upper threshold established. That is my hope anyway. 

     

by Andrew Geddis on July 15, 2010
Andrew Geddis

Jon,

Yes - as I said in my submission to the Committee, the empirical evidence is scattered and in no way allows a simplistic claim like "spend X dollars, get Y votes." That said, there is some evidence that spending can in some circumstances achieve positive election results. See, for example, the work of Ron Johnston and Charles Pattie in the UK, or M. Eagles in Canada. And, as you say, the "common wisdom" is that spending on campaigning at least has the potential to work ... otherwise there are a lot of very silly MPs and political party operatives out there. (Incidentally, this was another point I made to the Committee - if they honestly don't think campaign spending has any effect on outcomes, why do they ask for donations?) That common wisdom can then drive electoral behaviour - the "arms race" phenomenon where participants raise and spend cash out of the fear that if they don't, then their opponents will. Once a country is on that escalator, it gets very hard to get off it as the basic nature of what "electoral democracy" is all about gets changed ... and I happen to think for the worse. But then - that's just my view and while I'll defend it/argue it, I understand others will hold different views on this.

by Chris Diack on July 15, 2010
Chris Diack

Andrew:

Well arguably we should not regulate for the mere appearance of corruption. However the law has long recognised both corruption and the appearance of corruption as a rationale for the disclosure of donations.

And of course you are being way too cute. Underlying your desire to regulate spending by imposing caps is the assertion money voluntary donated to a candidate (as opposed to say given by way of state funding) is corrupting. You assert this because you hold that the purpose of spending caps is substantive equality between candidates.

Of course substantive equality was never the original rationale for the spending caps in New Zealand law. That is simply your overlay. That aside, real substantive equality between candidates, ideas, individuals is an unachievable objective.

I am not suggesting you don’t have a right to your opinion. All I am suggesting is that if you want to regulate in a manner that affects fundamental freedoms then the obligation is on you to make out the mischief. Offering up a popular prejudice isn’t good enough reason to regulate. Especially when the regulation has un intended consequences.

I never said election spending is irrelevant to election campaigns. What I said was that best evidence suggests that most spent campaign activity on most occasions only makes a marginal difference. Going to the gym is irrelevant in most people’s weight loss or gain; yet many do it. Like in much human endeavour there is much spent in campaigns that is wasteful and ineffective. Freedom means being free to do foolhardy things like pamphleteering even when your cause is hopeless.

Jon:

As you say money is necessary for political success but it’s not sufficient.

The 1986 Royal Commission on spending controls is very very dated. It perpetuates the fallacy that the law can equalise out all speech.

The US incumbent advantage is instructive. There is no other western democracy that has a more complex comprehensive legal framework around political competition. The overall effect of it is to reduce competition between candidates.

Stuart:

1,000 worthy submissions does not a riveting electoral system referendum make. As I said I cannot detect much interest in changing the electoral system from citizens. I doubt money will flow into the campaign surrounding it. Of course Andrew is a bit harpooned as there was no spending cap on the first one; there is no huge number of citizens who thought the result was illegitimate.

by Andrew Geddis on July 15, 2010
Andrew Geddis

Chris D,

Not sure you're correct to say my end goal is full substantive equality between candidates ... that seems more like a convenient straw man for you to trample underfoot, rather than a fair reflection of my actual argument. But if it makes you feel better, trample away.

Now - freedom. Wonderful thing. But freedom to do what? It's freedom to participate in a particular social construct ... an election process ... to try and achieve a certain particular end ... winning support for your ideas. Given that this social construct - the election process - is a common enterprise, it is going to be governed by the cultural norms and expectations of those who participate in it.  So you will only be permitted to have the "freedom" to take part in the process to the extent/in the manner that is considered consistent with the cultural norm of equality that (I assert) most New Zealander's consider valuable.

Sure, you don't like this silly-headed notion of equality, and think people should have a clear-eyed view of "the way things really are". But you are in a minority in New Zealand, and just 'cause you don't like the way people want their electoral processes to work doesn't mean you get to have things your way. Or, rather, if you want to get things your way, then convince people that they are wrong and should do it your way ... but you'll have to do that under the rules that they think are fair and appropriate. Simply waving the banner of "freedom" and saying "I gotta right to do this" won't get you there.

Finally, your point about the 1993 referendum is instructive. Imagine Shirtcliffe's money had been spent on a winning side. Think that would have altered the public's perception of the fairness of the outcome? I do.

by stuart munro on July 15, 2010
stuart munro

@ Chris "-there is no huge number of citizens who thought the result was illegitimate. -"

Democracy is not merely a matter of numbers, but also of strength of conviction.

The interference by a foreign funded organisation (the Exclusive Brethren leaflet was identifiaby copied from another equally scurrilous anti-green campaign used in Tasmania) is as vile a usurpation of democracy as has happened in recent New Zealand history.

I know an ample minority of sufficiently aggrieved people that were ready to shoot those responsible - an everyday occurence in the corrupt balloting process of the US, but a radical departure from the prevailing representative norms of NZ.

by Chris Diack on July 15, 2010
Chris Diack

Andrew:

Well let’s try this formula for your position: “whatever substantive equality that can be achieved by the comprehensive regulation of political expression in proximity to elections”. Does this sum up your position?

Of course put like that it is very radical despite roguish appeals to simple fairness.

Traditionally the rationale for regulating political speech of MPs was corruption and the appearance of corruption of public power (directly influencing voting in Parliament via big lumps of moneyor goods in kind privately given). A regime established for this rationale is being bent in order to serve another purpose.

While this regulatory framework actually rations speech that isn’t its intention. Your focus is on the effect and extending it to others. After all: “why ration MPs but not others”?

Again what mischief are you attempting to remedy?

Actually freedom to espouse ideas is about not having to accept a particular social construct. Not to get too philosophical but freedom assumes that prevailing social constructs can and do change.

Appealing to the kiwi cultural ethos of egalitarianism is all fine and dandy but that’s hardly a rational argument for the radical extension of regulation that you advocate. Of course the other problem is that despite lots of models of extensively regulating political competition around the world there isn’t much difference in attitudes of voters to their political systems.

Not sure about what would have happened if  FPTP carried in 1993 idle speculation really.  But you are sounding a bit Trotteresk.

by Chris Diack on July 15, 2010
Chris Diack

Stuart:

Did you actually see those pamphlets?

The great unwashed voter actually handled the issue.  You under estimate your fellow citizen. 

 

by stuart munro on July 15, 2010
stuart munro

@ Chris

Yes I did see the pamphlets - both versions.

Had the Greens comparable funding with the exclusive Brethren they could have mounted a solid action in libel.

The malefactors are still at large, they were not fined imprisoned or executed - in fact one of the treasonous sons of bitches is currently Prime Minister.

The system and its guardians utterly failed.

Your failure to understand the gravity of electoral interference does not render it acceptable.

by Graeme Edgeler on July 16, 2010
Graeme Edgeler

@ Jon: "the Royal Commission argued quite persuasively back in '86 that if there was one area where we the public should willingly cede some of our freedom of expression it is around how we elect our governments."

Actually, the Royal Commission recommended ceding pretty much all our freedom of expression around how we elect governments. They proposed that all advertising by non-parties and non-candidates be banned:

"8.40 ... placing a ban only on election advertising by interested groups and others not authorised by particular candidates or parties ... represents in our view a reasonable compromise.

...

8.42 ... our recommendations in this area are that all non-authorised election advertising expenditure during the campaign period should be prohibited and all authorised election advertising expenditure counted as an election expense for either a candidate, or a party. Advertising used to oppose any candidate or candidates or political party should also fall within the scope of s. 147A*."

[* the section in the Electoral Act 1956 requiring people to attain permission from a candidate before publishing advertising in support of them.]

The Royal Commission's persuasive argument in favour of banning non-actor electoral advertising took up all of two sentences:

Supporters or opponents of a party or candidate should not be able to promote their views without restriction merely by forming campaign organisations "unaffiliated" to any party or candidate contesting the election. Nor should powerful or wealthy interest groups be able to spend without restriction during an election campaign while those most directly involved are restricted.

That's it: a ban on all positive and negative election advertising other than by (or with the permission of) a candidate or party because of that persuasive argument. It's so incredible a leap of logic, I like to think you'd fail any student who tried it on you. There are many things that can be said in favour of regulating non-actor speech in elections, but it's more than a little disingenuous to argue that the Royal Commission said any of them.

by Graeme Edgeler on July 16, 2010
Graeme Edgeler

Had the Greens comparable funding with the exclusive Brethren they could have mounted a solid action in libel.

No way.

1. Corporate defamation is hard at the best of times, You have to prove actual financial loss.

2. It was political speech, which is very much protected in our defamation laws.

3. It was mostly opinion, not claims of fact.

4. Pretty much all the claims of fact (the notable exception being the claim about assistance for dope growers) were true.

The Exclusive Brethren Green Delusion pamphlet was an example of something rare, and disappointingly missing in our political culture - an argument centred around important policy matters, rather than high-flown rhetoric and broad platitudes. It was text heavy, and policy heavy. If only more of our political advertising was like that.

by Andrew Geddis on July 16, 2010
Andrew Geddis

@ Chris,

I simply do not agree that seeking to stop the electoral process getting caught in an ever-increasing spiral of campaign spending is particularly radical, nor do I agree with your claim that spending caps have been corruption focused. That was an aim back in 1895, but hasn't been the main driver in the last 30-odd years (see the Broadcasting Act 1989, limits on political party spending in 1995, discussions of third party limits from 2007 onwards). Once again, I assert that New Zealanders cleave to an idea of electoral democracy that embodies notions of equality, insofar as they do not wish to see candidates or parties engaging in unrestrained financial competition for public power (with parallel campaigners creating a more conflicted response ... I freely admit that).

And that was my point re the 1993 referendum (btw "Trotteresk"? I thought we were playing so nice!). Had the referendum come down to a (relatively narrow) win for FPP, with the spending that had taken place on the pro-FPP side, I think there would have been a quite visceral reaction against that outcome (as being "unfair"). It's simply a thought experiment that seeks to make clear my claim about what would happen to respect for electoral outcomes if there really was a right to unrestrained spending across the board.

Of course, the two of us arguing on a blog comments thread about what sort of electoral finance rules NZers would want if given the choice to make an informed choice is a bit redundant. Wouldn't it have been nice to have had a group of 70 randomly selected citizens who could learn about and evaluate all the arguments for and against regulation in this area, debate amongst themselves what form of regulation they think is best, and then make a recommendation about what should be done? But as that opportunity passed by, we're stuck with this "is so"/"is not" debate.

by stuart munro on July 16, 2010
stuart munro

@ Graeme

You are wrong on all counts.

It was not political speech, it was propaganda- which is to say, political advertising, a category in which spending is strictly limited to prevent the very kind of action that Key,the Brethren, and  their presumably foreign paymasters took.

Most of it was simple libel - links between the Greens and communist parties or principles, for instance, have no foundation in reality.

This was the low point of contemporary New Zealand politics, lower even than Winston's Waka jumpers.

It reiterated that the National/ACT bloc are the implacable enemies of democracy; determined to cheat and lie and break the rules to attain a power that their performance has not merited. They are tyrants, despots, traitors, and fools.

by Graeme Edgeler on July 17, 2010
Graeme Edgeler

You are wrong on all counts ... Most of it was simple libel...

I may come back to other points later, but, for example, of the 15 policy claims in the pamphlet, the claim from the members of the Exclusive Brethren who undertook the campaign that the Greens would "Introduce capital gains on family homes" - which the Greens dismissed as an "outright lie" had a perfectly reasonable factual basis.

It was from this submission, from the Green Party in 2001, but uploaded to their website shortly before the 2005 election makes pretty clear the Green Party view that there should be a Capital Gains Tax on the the family home:

... the treatment of owner-occupied private homes is a vexed one. It would be helpful to consider the impact of a comprehensive CGT on house values over time. To the extent that aggregate capital gains on the housing stock fall, the impact on individual home owners may be positive.
A slower rate of appreciation of house prices makes housing more affordable as well as lowering the asset value of homes. The latter effect does mean that any comprehensive CGT would need to be introduced with a long transition to avoid seriously disadvantaging those who have used home ownership as their main retirement savings plan.
...
The Green Party:
1. believes the Review needs to seriously and thoroughly examine a comprehensive capital gains tax (CGT) for New Zealand

When called on this over at Frogblog before the election, the response from the Frog was that the Greens didn't have a policy of CGT on family homes because it would only be paid on realisation.

As for your assertion that I was wrong when I said that the Green Party would need to establish financial loss to succeed in a libel claim, well, I think I'd need something more that your assertion that I'm wrong - particularly in light of section 6 of the Defamation Act.

by stuart munro on July 18, 2010
stuart munro

Righto - I was involved in an internal debate about capital gains taxes, and the decision of our group was not to pursue capital gains taxes on family homes.

Perhaps you can understand how a public claim to the contrary could interpreted as an outright lie. Because it was.

Of course, maybe you're a lawyer, dealing in distinctions that most people consider simply don't exist.

But the pamphlet contained the opposite of then Green policy, nor was it a simple misunderstanding, but a cynical and deliberate attempt to mislead the public for the purpose of gaining an electoral advantage - as were all the other statements in the leaflet.

Green policy is public, (unlike the cryptofascist agendas of ACT and the Nats), what they decide is specified and published, and the "gosh, who'd have thunkit" defence is not striking for its efficacy, and not tenable in this instance.

The authors of the pamphlet knew they were completely misrepresenting the Green position, and in fact libelling them. They proceeded to do so with mens rea, and to this day they squeak like cageful of rats because some of their own staffers were so apalled by the fraud that they leaked the emails that proved that Brash and Key were up to their scrawny necks in it.

I am not intimately familiar with the sections of the defamation act - But the Greens were libelled - deliberately and cynically libelled - in a way that certainly broke the rules on electoral advertising, with the full knowledge and connivance of National party leaders, who are perfectly aware of the rules.

It may be that they could mount a number of technical defences - but the principle that wrongdoers should not benefit from their misdeeds must weigh heavily against them, and a public trial might have finished the career of Key as easily as it did for Brash.

If you look at the polling and voting records a statistically significant correlation between the reduced vote and the leaflets would be pretty easy to establish. That in turn could be translated into parliamentary salaries in this case, although it should not be, because the libel constituted an attack on the impartiality of the electoral process, and had the spending been credited to the sponsoring party, National, they would have overspent their budget by considerably more than half a million dollars - enough to prejudice the whole election.

So, the matter was constitutionally very serious, and your assertion that 'most of the statements were true' is about as honest as the pamphlets. Were you one of the people who wrote them?

 

by Graeme Edgeler on July 18, 2010
Graeme Edgeler

the decision ... was not to pursue capital gains taxes on family homes.

Perhaps you can understand how a public claim to the contrary could interpreted as an outright lie. Because it was.

...

Green policy is public ... what they decide is specified and published, and the "gosh, who'd have thunkit" defence is not striking for its efficacy, and not tenable in this instance.

Yes, Green Policy is public. Uploaded to the Green Party website a few weeks before the election was a Green Party policy position on a CGT. I have quoted from it above. It calls for a comprehensive CGT, albeit with a long transition so as to not disadvantage those relying on their owning their home as retirement savings. It might not be how you'd frame Green policies, but that's a matter of emphasis, not truth: you cannot blame people from being sucked in when your website (still) carries this information.

I'll just go with one more: the claim by the seven members of the Exclusive Brethren church that it was the Green intention to "Cut defence spending by 50% and disarm our forces". This assertion was labeled not as a half-truth, but an outright lie by the Greens. It comes from the policy around this media release:

"The Green Party has announced at its annual conference that it will campaign to halve spending on defence from $1.6 billion to $800 million. "We see this cut as a 'peace dividend' providing much-needed money for social and environmental projects," said Green Party Defence Spokesperson Keith Locke, speaking at the party's annual conference in Wellington this weekend.

"The saving will come from disbanding the offensive capacity of the Defence Force.

...

"Fisheries monitoring would require two new patrol boats, but even after covering their operating cost we could save $800 million of the approximately $1.6 billion current budget."

On what planet is the short-form claim of the members of the Exclusive Brethren involved in producing this advertisement an "outright lie"? It is a difference of opinion over a clear policy position. You may wish to argue that while yes, there's a policy to halve defence spending, it's somehow completely unreasonable to categorise disbanding the offensive capacity of the defence force as disarming them, but this difference over a policy position creates a distinction that most people would consider didn't exist.

Your implied suggestion that people shouldn't be permitted to take statements and policies released by a party and use these to challenge a party is disturbing. National Party policy prior to the 2005 election was to only allow nuclear ship visits after receiving an express election mandate that they weren't seeking in 2005. Yet there were a lot of claims about how the ban would be "gone by lunchtime". Were these claims lies and libels aimed at rorting the democratic process?

by Chris Diack on July 18, 2010
Chris Diack

Andrew

1. Regulating political competitio

What I said was the explicit public policy justification for regulation of the financial aspects of political competition was corruption and the appearance of corruption in Parliament. A consequence of guarding against corruption (and its appearance) was rationing between candidates and parties. Its this rationing that floats your boat.

I freely admit that those advocating an extension of this regulation do so primarily for reasons of substantive equity between candidates, political parties, ideas and "interests." This is novel and revolutionary. It is also impractical and absurd, but that is another issue. What is clear is that this over arching balancing and rationing of political expression was not the historical objective of the law

I agree that this a last 25yr phenomenon. Mr Edgeler has pointed out the deficiencies of the Royal Commission work on this. In addition to being ‘once over lightly' they were pre BORA and there is now better evidence about the effects of regulating political competition

Look I did a public choice and liberal theory masters paper with Richard Mulgan. Really nice guy but I gained the impression he was not that fond of either. That aside, as a classics man he did not possess any practical knowledge of politics. And as for asking a Judge whether he likes rules. Come on

You are right to cite amendments to the Broadcasting Act. Fairness might have been the stated rationale. In fact it was a dirty anti competitive deal between National and Labour pre MMP which they perceived as a more competitive electoral system. Political incumbents often offer up new rules to make things fairer; most often the motivation is to enhance the considerable advantages of incumbenc

2. Procedural fairness verses substantive fairnes

Again most New Zealanders would want elections to be procedurally fair; honest electoral rolls, universal franchise, accurate counting, honest officials and all the rest

Superficially the notion of extending this to issues of substantive fairness is attractive. That is why you appeal to popular sentiment or the citizen's juries etc

In reality there is some evidence of what happens when regulation of speech between candidates and parties is extended to non candidate and registered party speech. It results in a less competitive political system. Generally less competitive electoral systems are less responsive to the democratic will

That aside the idea any electoral contest can be held among those actors who are all substantively equal is absurd. Likewise, that all ideas are of equal merit. Or that those citizens are best protected against one or another medium of distributing ideas because some are magically persuasive. Or that citizens should be protected from the over exposure to some ideas and the under exposure to others. All this is wildly impractical. The mathematical modelling required for this would make the authors of those bodgy climate change models blush.

3. The arms rac

Well at least you offer a mischief that might be cured by comprehensively regulating political expression within proximity to an election

But where is the evidence of this? The biggest growth in spending on political competition has been state funding via Parliament, which is running at tens of millions a year. Biggest factor in that was probably that the State was awash with money and it could be accessed in secret. That situation has changed

My view is that spending on political competition is linked to rising prosperity. The richer a society is the more that can be given and the more demanding that voters are as consumers of campaign related goods and services

But even if there is "an arms race" which is actually rising levels of voluntary contributions to political causes, why is that something we should address through rules?

4. The Trotter Theore

The other way of looking at the original MMP referendum would be that because those who opposed to MMP were free to make out their case they accepted the results - the judgement of their fellow citizens

As I say this sort of stuff is idle speculation. I cannot say what might have been the response of the political system if MMP had lost. Those that supported a change might have continued to advocate for other changes to the electoral system and the political actors might have responded. Who really knows

The Trotter theorem is that when I do it its organisation (and if that includes rule breaking its fair and justified in the bigger scheme of things) but if you do its corruption (and unfair in the bigger scheme of things)

Behind the theorem is the subtle hint of violence and direct action if one's position does not prevail. That may well be not what you intended to convey had those who supported a change to MMP lost.

 

by stuart munro on July 18, 2010
stuart munro

believes the Review needs to seriously and thoroughly examine a comprehensive capital gains tax (CGT) for New Zealand

Examining is not the same as introducing one. The Greens in fact rejected a number of quite moderate and limited CGT tax proposals because they believed that further public discussion was required before any changes were made. They were being responsible, but nothing in their caution must interfere with right wingers' right to lie, and cheat, and pervert the political process.

Gone by lunchtime was a Labour rhetorical adventure - but it was a direct quote.

Labour screwed the pooch on the wrapup of the Exclusive Brethren/ National electoral rigging and advertising fraud, because, together with the British New Labour, they aspired to permanent public funding -as might be expected of a party that betrayed their core supporters and leapt to the right in the hopes of getting more money. They no longer attract anything approaching public support, and traditional right wing supporters prefer their own brand.

"Cut defence spending by 50% and disarm our forces". This assertion was labeled not as a half-truth, but an outright lie by the Greens."

Which it was - the Greens had no policy to disarm our forces, that is an invention. - your invention. You might want to consider that the 1950s era patrol boats with a top speed of 8 knots, without modern armaments are already disarmed, and that the new craft represented a substantial improvement in offensive capacity.

You can tellsuch lies inparliament and get away with it because of parliamentary privilege, but uttering it in print requires that you exercise a greater degree of responsibility.

I reiterate - the pamphlet was a tissue of lies. Its authors knew they were lies. It was an illegal and secretive act, designed and quite efficacious in perverting the course of an election. The perpertrators should even now be languishing in prison.

And you know it perfectly well, you scoundrel.

by Graeme Edgeler on July 18, 2010
Graeme Edgeler

the Greens had no policy to disarm our forces, that is an invention. - your invention

1. I'm pretty sure it's not my invention.

2. You consider that because the Greens wanted to disband the offensive capacity of the Defence Forces (e.g. getting rid of the SAS), but not the armed forces entirely this doesn't amount to disarming them. It's not completely disarming them, sure, but halving their funding and getting rid of any offensive capability very clearly involves disarming them.

At the very least, it's an eminently reasonable difference of opinion to conclude that it is just that. Just as accusing National of trampling over worker's rights might be a reasonable view to take even though National could stand up and point out they've maintained (and increased) the minimum wage.

Labour screwed the pooch on the wrapup of the Exclusive Brethren/ National electoral rigging and advertising fraud ... The perpertrators should even now be languishing in prison ... And you know it perfectly well, you scoundrel.

Your proposal for a bill of attainder is noted and rejected.

by stuart munro on July 20, 2010
stuart munro

Well if you didn't invent that lie you seem remarkably intimate with the rationalisations of the persons who did. And persuadable, which makes you either stupid or corrupt, but most probably both.

No, it's not a reasonable difference of opinion. Disarming the armed forces was never even discussed by the Greens - and that makes issuing an assertion that they not only considered it but meant to do so an exercise in dishonest speculation.

You seem very familiar with legalisms.  But a democracy requires the rule of law, not the rule of lawyers, and indeed everything has gone rapidly downhill ever since Palmer got involved.

New Zealand will not be right until the perpetrators of the illegal interference in that election are brought to justice, and no amount of quibbling, or backsliding or spurious logic or litigious piffle is an acceptable substitute.

They must be made to pay.

 

 

by Graeme Edgeler on July 20, 2010
Graeme Edgeler

New Zealand will not be right until the perpetrators of the illegal interference in that election are brought to justice ... They must be made to pay.

And the only way they will be made to pay in the way you suggest (still being in prison now) is by passing a law either retrospectively increasing the penalty for the offence and extending the time for laying charges, or passing a bill of attainder.

And if we do either of those, then the rule of law doesn't just suffer, it's dead.

I don't care what was discussed by the Greens. ACT probably didn't discuss "screwing over workers", but I've no problem at all with anyone campaigning against them claiming that there policy is to screw over workers.

It has been the officially announced policy of the Green Party of Aotearoa New Zealand since at least 1999 that we should abandon the offensive capability of the New Zealand Defence Force, including getting rid of the SAS, and the Navy's Frigates. You can have a debate over whether that amounts to "disarming" our forces. I consider that a matter over which reasonable people might disagree.

by stuart munro on July 20, 2010
stuart munro

The rule of law died when National conspired to pervert the course of an election and illegally spent half a million dollars over their limit campaigning.

Even had they told the truth they must pay for corrupting the electoral process -unless you mean to pass retrospective legislation to entitle them to.

Which seems to be your aim. No amount of legal bullshit will make that election clean - not a problem for you, but that is why a reasonable person will describe you as hopelessly corrupt.

by Graeme Edgeler on July 20, 2010
Graeme Edgeler

How on Earth is it my aim to pass retrospective legislation entitling anyone to do anything?

by Claire Browning on July 20, 2010
Claire Browning

And you know it perfectly well, you scoundrel.

Pistols at dawn, Stuart? Again?

by Claire Browning on July 20, 2010
Claire Browning

And BTW, bravura performance from Graeme, in mounting the unassailable bits of the argument. Right on many of the counts, Stuart, not wrong on all of them, at all.

However, this might help, in assessing whether, overall, "Green Delusions" was directed to:

  1. furthering a good-faith, text and policy-heavy, truth-focused pre-election debate, or a legitimate challenge to party policy based on the statements of a party (ie, furthering good democracy); or
  2. bandying about quite a number of misleading half-truths (legally defensible or not), either without regard to the consequences, or with malign intent.
by Graeme Edgeler on July 20, 2010
Graeme Edgeler

And BTW, bravura performance from Graeme, in mounting the unassailable bits of the argument.

Indeed the Green response did help. As did this. It provides a series of links to blog posts disputing the Green rebuttal on the now defunct Sir Humphrey's blog. There's a little that's off, and perhaps a slight tendency to conclude that reasonable men may differ, but it's usefully well-referenced.

My claim that almost all of them were true was somewhat inflamatory but I wasn't trying to focus on the unassailable bits, just focusing on a couple so that, well, there could be some focus. I could quite easily have gone with number 15:

The Greens voted against protecting private property rights.

That that protection was contained in a member's bill advanced by an ACT MP, or that other parties voted against them as well might mean it was a good idea to vote that way, but it doesn't make this a half-truth.

Or:

support the Kyoto Protocol - the one billion dollar bungle

This was considered a half-truth, because while the Greens do support the Kyoto Protocol, they don't agree that it's a one billion dollar bungle. The billion dollar figure came from the change in Government estimates of the financial benefits/costs to New Zealand of the scheme at the time; but more importantly, whether it was a bungle is a matter of opinion or debate, not a matter of truth. And calling the Kyoto Protocol a bungle is certainly not a slur on the Green Party.

That said, I must commend the Green Party on its practice of keeping old material on its website. National doesn't even have policy from the most recent election on its.

by Claire Browning on July 20, 2010
Claire Browning

I'm guessing it was deemed a half-truth because they didn't vote against protecting all private property rights, only against enshrining them in the Bill of Rights in that very particular way, ie, giving them the same protection as other core rights. Big leap of logic to extrapolate. Sure, it might be valid to therefore ask the question, but presenting it as a sweeping statement of fact is untrue. Half-true. Whatever.

I agree the rebuttal had some irrelevant and/or convenient padding and/or elision in it -- ever seen a political party that didn't? -- and with much else of the bravura performance!

I must commend the Green Party on its practice of keeping old material on its website ...

Sadly, though, they used to have up the .pdf of the whole leaflet, which has mysteriously disappeared ...

by stuart munro on July 20, 2010
stuart munro

Pistols at dawn, Stuart?

Pikes are traditional - they provide the necessary display space for the heads of persons who claim control of states without public assent.

by Graeme Edgeler on July 20, 2010
Graeme Edgeler

Sadly, though, they used to have up the .pdf of the whole leaflet, which has mysteriously disappeared ...

Inside, and outside, at ZenTiger's now blog.

by Claire Browning on July 20, 2010
Claire Browning

Ta. Love the bit about Tasmania

by stuart munro on July 20, 2010
stuart munro

@ Graeme - part of the problem with your argument is your idea that half truths might somehow be an acceptable category - but it's really a bit too loose to be useful.

Your example "ACT want to screw the workers" is problematic because it is a metaphor, and so its vagueness gets it out of much potential difficulty.

But suppose we started from "Politician X loves children" and extended it to "Politician X is a paedophile". While the statements are etymologically equivalent, the second is extremely pejorative. Is it a half truth? It seems to me to be an extension of the kind that most in the pamphlet were, but I venture to suggest that if I libelled John Key (having first discovered an assertion that he loves his children) in this way, half -truth would not prove an adequate defence in court.

The whole fiasco revealed a very low level of concern for the democratic process, which is supposed to favour the truth by adherence to such norms as the principles of natural justice.

Some of the pamphlet claims were worse than others, but most could not have been printed in a newspaper, having insufficient foundation in truth.

The timing, directly before the election, was to prevent the right of reply, one of those principles of natural justice designed to reduce the benefits of unsubstantiated slander.

The whole event remains deeply unsatisfactory, and I would cheerfully consign everyone involved to prison for twenty years or more. But then it seems I take democracy more seriously than you do.

by Dean Knight on July 22, 2010
Dean Knight

Andrew

Back to the dissolution point, following a loss of confidence. 

One thought I have been toying with (and trying to work up for a piece somewhere) is the idea that a PM's power to recommend dissolution following a loss of confidence is best understood through the lens of the caretaker convention.  That is, a PM who has lost confidence is obliged to resign but they have no independent power to call an election.  Under the reserve powers, the GG is obligated to ascertain whether any new political setttlement exists within the existing Parliament, ie a new phase of government formation takes place.  During this period, the PM - who has lost their democratic mandate - has no automatic legitimacy to force an election which might trump that process.  However, if they can, through the caretake convention, consult with other party and identify that calling an election is supported by a majority within the House, that recommendation to the GG has democratic legitimacy and should be accepted (and only accepted in such circumstances). 

I know the present understanding of the constitutional conventions doesn't contain this gloss, but it seems to me that such an approach is consistent with first principles and our conventions could (and should) evolve accordingly.   

by Andrew Geddis on July 23, 2010
Andrew Geddis

Dean,

Isn't your proposal already the position reflected in the Cabinet Manual 2008, para. 6.58:

A Prime Minister whose government does not have the confidence of the House would be bound by the caretaker convention. … The Governor-General would expect a caretaker Prime Minister to consult other parties on a decision to advise the calling of an early election, as the decision is a significant one. … It is the responsibility of the members of Parliament to resolve matters so that the Governor-General is not required to consider dissolving Parliament and calling an election without ministerial advice.

In other words, if a PM who has lost the confidence of the House (whether in an open vote in the House, or through a clear and public collapse of coalition arrangements) were to turn up on the GG's doorstep later the same day and say "call an election, please", the GG likely would say "no ... go away, talk to the other parties, see if they can arrange a replacement government and only come back to me where it is clear that they can't do so (and thus an election is the only alternative)."

If that IS the case already (i.e. our conventions contain the gloss you suggest), then I'd simply like us to go one step further and require (by legislation) that the House indicate its inability to provide a replacement government through a positive vote for an early election.

by Dean Knight on July 23, 2010
Dean Knight

Andrew

Yes - I am a peanut. You're right, it's there already...

And, I find subsequently, also mentioned in one of Dame Sylvia's speeches in 2001...

d

by Graeme Edgeler on July 23, 2010
Graeme Edgeler

And, I find subsequently, also mentioned in one of Dame Sylvia's speeches in 2001...

I was gonna say ... but I assumed you knew of it and didn't think she'd been quite clear enough.

by stuart munro on September 02, 2010
stuart munro

One of the gaps left by parliament's failure to investigate the Brethren donations, was where they got the money. It is true that they are well-heeled, but it is far from clear that they got it through ordinary processes.

http://www.newyorker.com/reporting/2010/08/30/100830fa_fact_mayer?currentPage=all

These fellows seem to be disposed to that particular kind of dirty trick, and certainly in the position and habit of trickling money into political processes for just such ends.

It's unfortunate the matter was never investigated, because the entry of these actors into the NZ political realm would be the death knell for local representation.

Post new comment

You must be logged in to post a comment.