The NZRFU's code of conduct requires that players "never argue with the referee.  Control your temper at all times." Peter Dunne could learn from it.

The saga of UnitedFuture's status as a party rolls on, with the most recent development being that the Electoral Commission has rejected its application to register. Peter Dunne apparently is meeting with the Speaker, David Carter, to discuss what implications this decision will have for his status as the leader of a party recognised for parliamentary purposes - a matter I've posted on here.

(For what it is worth, I predict David Carter will maintain his "grace period" ruling for the time being ... allowing UnitedFuture the opportunity to (properly) reapply for registration and the Commission time to consider that application. The Commission's decision isn't that UnitedFuture can't be registered - it's just that the application to do so wasn't in the required form.)

The Commission's full reasons for rejecting UnitedFuture's request is here, but in essence the main problem with it was that; "In its application (for registration) on June 11, UnitedFuture provided a spreadsheet with the names of its paid party members. The commission requires signed and dated forms for each member, either electronically or as hard copy."

The Commission's stance then attracted a fairly robust response from Peter Dunne:

"These guys still live in the days of quill pens and parchment. I think there's now pressure on the Minister of Justice, Judith Collins, to bring this rogue elephant into line. This is petty bureaucracy gone mad ... ."

Mr Dunne said the commission's insistence that it had to treat United Future as a new party was equally ludicrous, given it had been registered for 20 years until a few weeks ago.

"If we are not a new party, we should not be treated as a new party for registration purposes. It's as simple as that."

Strong words, indeed! But how justified are they?

Well, one matter we can get out of the way immediately. The Minister of Justice will not be acting to "bring this rogue elephant into line". The Commission is an Independent Crown Entity that operates without any direct ministerial control, and is subject to a statutory requirement that it "must act independently in performing its statutory functions and duties, and exercising its statutory powers." So unless Dunne means that there is pressure for Judith Collins to introduce a bill to amend the Electoral Act, he's talking nonsense on this point.

But what of Dunne's substantive complaint, that the Commission has somehow misused its authority in refusing to accept the UnitedFuture application? That requires a bit of a magical mystery tour through the law.

The Electoral Act establishes the following statutory scheme. First of all, note why party registration matters. It gets a party certain benefits. Most obviously, it lets a party contest the all-important party vote at each election; if you ain't registered, you can't put up a party list. Being registered also is a pre-condition to sharing in the broadcasting allocation distributed to parties prior to each election, which will net a party at least $10,000 of taxpayer's money. So putting an organisation on the register of political parties has pretty serious and important consequences in terms of electoral law - it isn't the sort of decision that the Commission ought to approach on a case-by-case, "common sense", do-what-seems-right basis.

(It also appears, according to Parliament's Standing Orders and the Speaker David Carter, that UnitedFuture becoming registered is a precondition to Peter Dunne maintaining his extra parliamentary funding - but that isn't a matter that arises under the Electoral Act and so it isn't relevant to the Electoral Commission's duties. How Parliament chooses to recognise and fund the "parties" represented within its walls is none of the Commission's business.)

Under the Act, there are only two sorts of parties: "unregistered" and "registered". There is no category of "registered for years but carelessly slipped beneath the necessary 500 current financial members requirement so had its registration cancelled but now wants to re-register" parties. Therefore, once United Future's registration was cancelled, it became an "unregistered" party just like any new political movement seeking to get onto the register for the first time. That may be "ludicrous" to Peter Dunne, but it's the way the Electoral Act works ... a piece of legislation, it should be noted, that he voted for back in 1993 and has shown no interest in amending since then!

Where any unregistered party wants to become registered, it must meet the mandatory statutory requirement in s.63(2)(vi):

An application for the registration of an eligible political party ... must ... be accompanied by evidence, in a form approved by the Electoral Commission, that the party has at least 500 current financial members who are eligible to enrol as electors.

So, the onus is on the party wanting to get registered to provide evidence it has sufficient membership to do so - with the Commission given a statutory power to determine the form that this evidence is to take. (I'll get to what the Commission actually requires in a moment). Then, under s.66(1):

The Electoral Commission shall refuse an application for the registration of a political party if—

(a) the application does not comply with section 63; or

(b) if it is satisfied that the party does not have 500 current financial members who are eligible to enrol as electors.

So, if a party wanting to be registered does not provide the Commission with the evidence of membership required by the Commission, it cannot be registered (and, if it does provide that evidence but the Commission concludes the party doesn't have the requisite membership, it also cannot be registered). Then finally, under s.70(2):

The Electoral Commission shall cancel the registration of any political party on being satisfied that the number of current financial members of the party who are eligible to enrol as electors has fallen below 500.

This is, of course, the provision that led UnitedFuture into its present trouble. The party's secretary complied with s.67(3)(d):

It shall be the duty of the secretary of any political party registered under this Act ... to notify the Electoral Commission if the number of current financial members of the party who are eligible to enrol as electors falls below 500.

He did so by refusing to supply an annual declaration under s.71A:

I note in passing that Peter Dunne is claiming that "UnitedFuture is being penalized for its honesty", in that had the secretary just made the relevant annual declaration without being sure the party had the requisite number or members, the Commission would not have cancelled the party's registration. I guess this is true ... insofar as he's suggesting it really was an option for his party secretary to ignore his legal obligations and commit an offence that could land him in jail for up to three years!

Anyway, the real issue then becomes, what does the Electoral Commission demand from a currently unregistered party as evidence that it has the required 500 current financial members who are eligible to enrol as electors? Well, it requires the following:

For each member a personally signed and dated declaration (usually the membership form) which contains:

1. the member's name and residential street address
2. confirmation by the person that they are eligible to enrol as an elector
3. the amount of the membership fee that has been paid to the party
4. authorisation for the party to record them as a financial member of the party
5. authorisation for the party to release their membership details to the Electoral Commission for the purpose of the application to register the party under the Electoral Act.

To check eligibility to enrol as an elector, it can help to include further questions relating to the eligibility requirements.

The Commission requires the original forms, so you should take copies for your own records if required.  The original forms will be returned to the applicant once the application is determined.

There is a template party membership form with content that meets these requirements below.  If you wish to pick up this content and include it in your form then the Electoral Commission would be happy to check your proposed form before you use it.  ... New parties are urged to take advantage of this offer to ensure that the completed membership forms are not rejected outright.

Two things might be noted about this. First of all, the Commission is pretty clear about what it expects parties to give it by way of evidence of membership, so a party can hardly claim to be blindsided by the need to provide the original membership forms. Second, there is a reason why the Commission demands the original of a form containing this information (or, at least, a .pdf of such forms). Under the Electoral Act, a "current financial member" is someone: 

(a) whose membership of the party resulted from an application made by the member to join the party; and

(b) who is, under the party’s rules, subject to an obligation to pay to the party a membership fee—

(i) on becoming a member; and

(ii) then at specified intervals of not more than 3 years; and

(c) who has paid to the party every membership fee that has for the time being become payable by the member in accordance with those rules.

For the Commission to be able to assess whether or not a party actually has the requisite number of current financial members to get registered, it must be able to see that the people claimed as members have actually agreed to join in person, that they applied to join and paid their membership fee before the application was made, and that they are willing to have the party share their details with the Commission (which is a Privacy Act requirement). All of which is why a simple spreadsheet containing the names and addresses of claimed party members (as supplied to the Commission by UnitedFuture) really isn't good enough.

So I'm not sure that damning the Commission for its decision really is appropriate. Given the statutory duties it has, and the consequences for the electoral process of allowing a party to become registered, it seems to me that it really couldn't bend its existing rules and accept UnitedFuture's request. And while that decision might be aggravating to Peter Dunne, blaming the ref for applying the rules of the game in a way you don't like is a bit on the nose.

Having said that, however, there is one issue that might bear further examination by the Commission. It is very keen to move to a system whereby new voters (people turning 18) can enrol online, rather than having to do so by way of a physical application with signature attached. This is a recognition of how the world now works - people (and the youth, especially) more and more expect to be able to do everything from their keyboards. And that applies just as much to joining and remaining a member of a political party as it does to things like paying bills, booking a plane flight, or enrolling to vote

I do wonder, therefore, if there might not be some room for the Commission to think about developing a process whereby parties can accept online membership applications in place of paper ones. After all, there is no statutory requirement that a party member physically sign a membership application in order to count as a "current financial member" (as there presently is to enrol to vote - which is the main obstacle to any move to full online enrollment). And it is not an offence for someone to falsely sign up as a party member using a fake name and address, so someone adding a made-up signature to a document doesn't carry any extra legal consequences.

Therefore, it is not clear what added value there is in a requirement that parties only may claim "current financial members" using physical membership forms with signatures attached. A printout of 500 completed on-line forms containing the information necessary for the Commission to check whether each person really is eligible to enrol as an elector, along with evidence that the person has paid any relevant membership fee, would seem just as able to provide the necessary basis for the Commission to accept that the party has met the legislative requirement to register.