Fitzsimons Speech: Validating Legislation
Jeanette Fitzsimons speech, October 17, Validating Legislation Appropriation Bill
The Greens will abstain on this Bill, in accordance with our co-operation agreement with the Government, on all matters of confidence and supply.
A month ago I announced that the Greens would pay the full amount eventually found to have been spent outside the scope of our Parliamentary appropriation, but that we would not support validation legislation on the principle that MPs should not use their power to legislate to remove themselves from accountability.
Since then it has been clarified that the form taken by the legislation makes it a matter of confidence and supply so there would need to be an extremely good reason to not observe our commitment under the co-operation agreement. We would be entirely happy not to oppose the bill if all parties had committed to their moral obligation to repay any any spending found to be outside the scope of the appropriation. However there are two parties who have yet to make that commitment. We would be very concerned if this legislation was used by them as an excuse to not pay the money back.
The obligation is simply a moral one. There is no legal obligation on any party to make restitution for what it has been found to have spent in error. But the passing of validating legislation does not absolve anyone from this moral obligation, onerous as it must be for parties who, like ourselves, have reduced representation this term compared with last.
In the committee stages we will support those clauses that set out the rules from here on. If the Bill could be split into two, we would support those clauses at the third reading too. It is essential that the law gives us some guidance as to the meaning of Parliamentary purposes and electioneering. Otherwise none of us knows what we can and can't do with our leaders budgets right now.
It is true we were all warned we could not use Parliamentary appropriations for electioneering, and we all agree with that. It is also true that electioneering has never been properly defined, so we all followed a rule of thumb definition that we could not ask for votes for a candidate or a party; that we could not solicit money or membership in any way. The Auditor-General's 2005 report did not clarify electioneering any further. To the extent that it did try to clarify the rules, those criteria are not applied in his 2006 report. Our 2005 spending has been audited using a different set of rules from those set out in the 2005 report.
For example, the 2005 report identifies a principle of democratic interaction, saying that dialogue between representatives and the public is a valid and fundamental part of a democracy. Yet newspaper advertisements invited the public to discussion on climate change and oil depletion with me were ruled out of order, though they made no reference to the election.
We also have a new rule that the legality of an action changes three months before an election. This is despite the opinion of the Solicitor-General, which the A-G relies on, which explicitly says that things lawful for the rest of the term do not suddenly become unlawful three months before the election. The A-G relies for this ruling on the Electoral Act, which has never applied to the spending of the Parliamentary Service appropriation. It is a particularly difficult ruling to apply, given that one never knows the 3 month period has started until the election has been called, which usually occurs at least a month later.
He has applied a ruling that any mention of the future, or of vision, by a party constitutes electioneering. That would seem to favour parties who wish only to preserve the status quo.
I also fail to understand the application of a criterion of "wide dispersal" where the more widely a communication has been dispersed, the more it is held to be electioneering. Under MMP list members, and parties, have nation wide constituencies. Surely if a communication is lawful in one place, it is lawful in several.
Since the election, the Auditor-General has defined as electioneering any discussion on matters not actually before the house. No such ruling was given to us before the election, and it advantages members of the government, who are likely to want to talk about legislation they are promoting, against opposition parties, who prefer to discuss with the public legislation they would like to introduce.
Clause 7 of the Bill defines Parliamentary purposes in the way they have been understood for some time - excluding seeking votes, money or members. At least we can continue to do our jobs as MPs in the interim while new rules are developed before the next election. The Greens look forward to participating in that process.
There are some very serious issues of democratic principle raised by this investigation and ruling.
Members and parties are elected to pursue certain policies on behalf of the public. Elections are, or should be, a contest of policies. The business of Parliament is partly about ensuring stable government and much of its law making is not politically contentious. But it is also about a contest of ideas for the future of our country.
A central question is, are MP allowed to use parliamentary funding to discuss their policies with the public? If they are not, parties without rich backers will have difficulty informing the public about what they propose. A poorly informed public cannot support a democracy.
The ruling we have from the A-G says that we may not use our leaders budgets to tell the public what policies we are advocating. It is hard to see what we can, then, use them for.
It will always be difficult to draw a line where work as a Parliamentarian stops and electioneering starts. That is why we need clear guidelines if the line is to be drawn in a different place from where we always thought it was. In particular, this report is a very partial audit of parliamentary funding for parties. It has looked only at advertising expenditure. If the advertising budget cannot be used to discuss our policies with the public, then surely neither can our staffing budget, our travel or accommodation or phone budgets.
If staff are not allowed to prepare responses to questions from the public and media about our policy positions, it is difficult to see what they can do in the period after the house rises for the election. There is no parliamentary business for them to assist with. Parliament is in recess then to allow the democratic process of electing representatives to occur, at which time the overwhelming public interest is in learning factually what policies the parties are proposing. No-one has ever told us all staff must be sacked the day the house rises.
It also raises questions about the use of MP travel and other expenses during that period. It is surely absurd that we cannot use parliamentary money to invite people to a meeting to discuss our policy, but we can use it for the leaders to travel to the TV debates which are totally about electioneering.
These are all matters the Parliamentary Services Committee must consider in order to have new rules in place before the 2008 election. It may be that the definition of Parliamentary purposes should be somewhat narrower than that set out in section 7. Advertisements which do not solicit votes or money but which make disparaging comments on other parties or simply carry slogans with no informational content might equally be held not to be parliamentary purposes and solely electioneering. That is for the Parliamentary Services Committee to determine in its deliberations. For the moment we have the guidance we need to continue to do our work as MPs.