Monday, November 19, 2007

Electoral Finance Bill

Here's my take on a controversial aspect of the Bill: whether the loud hailer protestor is caught by the Bill. I'll simply copy and paste my comment on KiwiBlog here (with some edits).

Currently if you wish to erect a billboard in Mt Albert, for example, during the 3 month period prior to an election that says “vote Helen Clark”, because that billboard asks for a vote for a candidate it has to be included as an election expense and the cost declared in the candidates return. Moreover, the billboard must carry an authorisation of a name and address.

Clause 5 of the Bill redefines election advertisement (the vote part described above) and now includes in that definition “…words or graphics, or both, that can reasonably be regarded as doing 1 or more of the following:” - it then lists the items.

Subclause (i) is not so scary - “encouraging or persuading voters to vote, or not to vote, for 1 or more specified parties or for 1 or more candidates or for any combination of such parties and candidates”.

So words encouraging a vote for Clark would be prima facie an election advertisment. What Pete over at KiwiBlog has argued is that walking down Mt Albert Rd shouting “VOTE HELEN CLARK” on a megaphone is not an advertisement as it is ordinarily thought of (in fact, some may think you’re a raving nutter if you did that!).

It is always useful to see what the purpose of the Bill is in order to ascertain what the words in the Bill might mean and I don’t have a copy of the Bill so don’t know what the Bill’s stated purpose is.

But if you assume the purpose of the EFB is to restrict *money* speech then unless the nutter mentioned above is paid by the National Party to walk down Mt Albert doing what he is doing I doubt the definition would cover that circumstance. However, don’t be fooled by the words “reasonably regarded”. From the definition above it is only the *words or graphics* themselves that can be reasonably regarded as advertising (by encouraging people to vote Helen Clark), and not the way in which they are spoken or indeed in what manner they are delivered.

But, subclause (ii) of Clause 5 is very scary: “encouraging or persuading voters to vote, or not to vote, for a type of party or for a type of candidate that is described or indicated by reference to views, positions, or policies that are or are not held, taken, or pursued (whether or not the name of a party or the name of a candidate is stated)…”.

This captures the issue position that the previous version of the Bill adopted. Now, let’s say our resident nutter above then went and stood outside Sue Bradford’s electorate office chanting “bring back section 59, smacking is not a crime”. Much would depend on either a liberal or strict interpretation of the Bill. Again, without seeing the purpose I can’t judge but the whole point is that this should never even be debated. Our poor soul above should never be in the position during an election year where he may have broken the law for expressing his views on section 59, for example.

Clause 53 bans election advertisements as defined in Clause 5 unless they meet certain criteria which I will come to. What is interesting is that it starts with a negative “Election advertisements not to be published in regulated period unless certain conditions met”.

By casting off this way, by importing a negative and prohibitive statement on election advertising, it is basically saying that ranting and raving about s 59 is illegal unless you follow the procedures.

My view is that this should be the opposite: it should positively encourage it rather than actively discourage it. But I think I have found a curious thing.

If we assume the nutter above has published an election advertisement then under Clause 59 he cannot do that unless the name and address of the promoter is mentioned and the promoter is entitled to promote the advertisement.

Under Clause 5, the promoter is entitled to promote in the usual ways (secretary of political party/candidate etc) but now also includes the financial agent of a third party - let’s say the Exclusive Brethren.

But our resident nutter is none of these: he is just an individual with a bee in his bonnet - much like D4J! So how is he captured then?

To do so he has to be a “promoter who promotes election advertisements during the regulated period…”.

Now put to the side for one moment the $12,000.00 limit, if our nutter is not a “promoter who promotes election advertisements” but is merely Joe Citizen (i.e. not a political operative at all and never has been) then he isn’t captured! He is simply not a promoter. He is just a guy with a loud voice!

I think it’s that easy. I think (pray) the Bill’s intent is geared around the professional political operatives and associates. My feeling then is that the guy in the street has nothing to fear.


Dave said...

The bills stated purpose is to promote participation by the public in parliamentary democracy, and maintain public and political confidence in the administration of elections.

The bill fails its aim because it restricts such participation, promotion implies more participation.

Dave said...

Given that a placard is an election advertisment, the question is who is causing or publishing that advertisement. Is it the 'nutter" you described if he is causing the advertisement to be seen by walking with the placard?

Despite the bills intent, the man on the street has everything to fear. I dont thnink the bill indtends that everyone with a loudhailer broadcasts his name and address over that loudhailer but if he doent, he breaks the law unless an SOP changes it.

Psycho Milt said...

Here's my take on it:

1. We've seen in recent weeks an actual threat to our democracy in the form of amendments to the Suppression of Terrorism Act, so yes I'm not chuffed with Labour's authoritarian bent.

2. National supported that amendment, so I'm not chuffed with their authoritarian bent either.

3. In light of the above, National's hyperactive attempts to paint the EFB as a threat to democracy rather than National's finances rings not only hollow but hypocritical.

I note the only parties to stand up against the STA in Parliament were ACT and the Greens (don't know what the Maori Party had to say, but am in any case not particularly interested in what race-based parties think). No matter what I think of their economic policies, it will be bad for NZ if ACT disappears from Parliament next year.

Seamonkey Madness said...

Too bad thats a serious possibilty now PM. Not only did they vote for the Parliamentry Apprpriation Bill (which he explained why, although in my mind, not very well), I heard Rodney on the radio this morning saying that he expects the EFB to pass before Xmas.

Now he didn't explicitly say he was voting for it, but it didn't sound like he was putting up much opposition either.

A sad, sad day.

KG said...

"I think (pray) the Bill’s intent is geared around the professional political operatives and associates. My feeling then is that the guy in the street has nothing to fear."
Which isn't good enough, is it?
Lot's of people thought (prayed) that Bradford's bill wouldn't criminalise decent parents too.
When we're reduced to hoping that a law will be applied in a particular way, then we're reliant on the goodwill of the government of the day.
Just like Cubans.

Rupert said...

So... If i purchase a really really expensive gold plated, jewel encrusted billboard that costs a huge amount of money, can I sabotage a candidates campaign by forcing them over the limit?