Minister Gets More Tangled in Electoral Law Web

Tuesday, October 2 2001 Stephen Franks Press Releases -- Justice, Law & Order

The Minister of Local Government should promote an urgent retrospective repeal of foolish parts of the Local Electoral Act passed earlier this year. That is to be fair to candidates who may have relied on misleading reports of advice from her Department, says ACT's Justice spokesman Stephen Franks.

"Early this year the Government introduced for the first time spending limits for local authority election campaigns. Spending limits can be avoided by having other people do the promoting or the bagging. Then it is not counted as electoral expense. The Hon Sandra Lee therefore decided to make the nonsense work by banning material promoting the election of any candidate without the written authority of the candidate.

"This totalitarian nonsense got all the way through Parliament despite my warnings that it interfered with the basic principles of free speech and democracy. Ultimately the Minister was forced to accept there might be a problem. She said "some political groups or individuals might still attempt to make political capital out of the issue and generate uncertainty". She "suspended" section 135 and said it would be rewritten before being implemented.

"No rewrite has emerged. Now electoral officials are completely confused about what is an offence and what is not.

"They may have completely mislead candidates, and undermined the fairness of the election now underway.

"My letter to the Minister, attached, should be self explanatory," Stephen Franks said.

LETTER TO SANDRA LEE:

02 October 2001

Hon Sandra Lee

Minister of Local Government

Parliament Buildings

WELLINGTON

Spending Caps: Local Elections

Your officials have been widely reported as advising that "candidates won't be fined for overspending, or failing to authorise their advertisements". Internal Affairs senior policy analyst Victoria Crawford is reported as saying spending caps and authorisation for advertising will not be enforced during this election.

In consequence Auckland City Council electoral officer Dale Ofsoske is reported as telling candidates "the offence provisions have been suspended so there's no teeth to the law".

Though what they say is what should have been the position it is dangerously misleading. Only section 135 of the badly conceived new Local Electoral Act was suspended. Candidates remain vulnerable to police action at the request of any disappointed candidate. I urge you to introduce an urgent amendment to ensure that the position is as candidates may now believe it to be, or prepare for liability claims against the Government for negligent advice if any candidate is prosecuted.

Background

You deferred the commencement of section 135 because it would have prevented ordinary political reporting and debate, though on 27 May this year you were still claiming that my concern about the new law was "an ACT beat up". You said "I am determined to ensure that effective limits on candidates' election expenses will be well established in time for the October local authority elections".

On 3 June you said you were legally assured that news media could not be successfully prosecuted for exercising their free speech rights under the Local Electoral Act and claimed my interpretation of section 135 was "not only misleading, but erroneous".

On 25 June when announcing the Government's back-down and suspension of the new section your statement said local electoral officers "needed to be focused on implementing the new legislation including the provisions relating to limits on candidates' expenditure which are new for local authority elections.".

You claimed a concern for "the integrity of the electoral process" above what you called "political gamesmanship" and said that was the reason for deciding "absolute certainty about the relevant legislative provisions would be paramount" when justifying the suspension of section 135.

What is the Current Legal Position?

Absolute confusion reigns. No Minister has powers to suspend the law or enforcement of the law. The only provision you had legislative authority to defer, was section 135.

I call on you to clarify immediately what you or your Department think was the effect of "suspending" section 135. You have talked about the new law creating "equal opportunities". The simplest way to ensure an equal opportunity for media exposure could be to ban media people, sports personalities and any others who get automatic media attention without paying for it, from standing for office. This would be absurd but it is the natural consequences of your claims. Being forced to suspend section 135 is only partial fix to the gagging effect of your badly drafted new provisions.

Candidates who breach the new limits will still in most circumstances be liable. Section 138 means that an electoral officer has no choice but to report any written complaint about an offence to the Police, and I would be surprised if you were claiming a power to interfere with Police decisions whether or not to prosecute.

As you know I would be delighted if what your officials are reported as having said was true, because this bad new law simply puts power in the hands of political parties, pressure groups and local body incumbents. It disadvantages independent candidates who will not have experienced political operators helping them find the loopholes and hidden paths through the new regulatory thickets.

I am determined during my time in Parliament to try to create more respect for integrity in every law I touch. I insisted on the new provision in the Electoral Amendment Bill reported back yesterday, that creates sanctions for deliberately false statements in the last two days before an election. ACT will oppose slogan law, that doesn't mean what it says, just makes people cynical and rewards the sly.

You and your fellow constitutional conspirators are instead warping our election system to reward sharp practice. The cunning insiders can work the loopholes knowingly left in these laws.

All candidates urgently need to know whether spending limits do apply to them or don't. To be fair, they also need an explanation of how to take advantage of the loopholes left by the law, so that all are equally equipped to treat it with the contempt it deserves.

Dithering and obfuscation in this area in the end may serve your purposes as poorly as dithering over Whitianga and other Resource Management Act matters.

Yours sincerely

Stephen Franks MP

ACT New Zealand

For more information visit ACT online at http://www.act.org.nz or contact the ACT Parliamentary Office at act@parliament.govt.nz.

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