Written By: - Date published: 9:23 am, June 25th, 2008 - 318 comments
Categories: helen clark, polls -
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Everyone in the know is aware that Colmar Brunton is the worst polling company in New Zealand and constantly over-rates National. We also know Fairfax isn’t much better. There’s no use in going on about it. It’s not a good look.
The fact is Labour is well behind National in the polls. There’s no point pretending that isn’t the case. Instead there are two points that you can make:
1) This is MMP. It is the largest group of parties, not the largest single party, that governs. Labour has both the experience and the allies to make workable governing arrangements Labour doesn’t need to win more votes than National to lead the next government.
2) Labour is coming into this as the underdog and, in reality, that’s where the Left always is against the Right – we have the people but they have the power. There’s nothing scary or impossible about that situation. Admit you are the under-dog and the challenge goes on National to prove they deserve to govern in their own right. PLacing yourself as under-dog undermines this constant vacuous nonsense of ‘time for a change’ and foils hit and run attacks from National. The pressure will go on the tories, and their facade will be shown for what it is.
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rOb
The decisions about the amendments would be irrelevant (at this time) if ‘convienance’ wasn’t being applied and they would not have slowed down the passage of the definitions so urgently needed by PS.
Hello – we are back at DvC.
rOb
I’ll stop calling retrospective validation indefensible, you stop calling it “every day and ordinary, nothing fishy about it” and I’ll only mention retrospective validation when Hollow men is being talked about – how is that?
The decisions about the amendments would be irrelevant (at this time) if ‘convienance’ wasn’t being applied and they would not have slowed down the passage of the definitions so urgently needed by PS
Sorry Burt, I don’t understand, was that a reply to my comment of 11:28? If so I don’t understand, could you expand? Take your time, I’m going to have a cuppa.
I’ll stop calling retrospective validation indefensible, you stop calling it “every day and ordinary, nothing fishy about it’ and I’ll only mention retrospective validation when Hollow men is being talked about – how is that?
I think it’s as good a place to stop as any! I think that, knowing now all that you do about RV it is a little cynical to use it as a stick to beat people with, but I certainly can’t stop you doing it.
How about this to give the whole thing a measure of closure. I will write a summary as I see it. You edit the summary as you see it. Anita (if she is willing) writes the final edit, and we call it a day. OK?
rOb
Why are we here trying to determine why parliament did what it did, why was it that parliament made a ruling on the application of the law under such irregular circumstances amid such publicity culminating in the killing of DvC
You say…
F##K, do you think parliament should have the power to decide when a court case should proceed as well ? You really do want to live in a dictatorship. Is there no power too great to give your political party of choice?
I might be done here.
rOb
Lets get something clear here, IF the govt were so sure that DvC would fail, sure enough to push the house into urgency to kill it, then why why why would they not sit back and laugh at Darnton when he failed – then HC could probably sue his ass off and restore the publics confidence in her. She’s not silly enough to take the hard hard hard way if there was an easy way – surely…
Come on, stop looking after them, face the facts….
F##K, do you think parliament should have the power to decide when a court case should proceed as well ? You really do want to live in a dictatorship. Is there no power too great to give your political party of choice?
Oh Burt, I thought we were winding up!
Re the power of Parliament, go see Draco’s post above at 8:09pm. Parliament already has ultimate power Burt. Are we living in a dictatorship?
And the power of Parliament is NOT the power of the political party of my choice (used to be under FPP, isn’t under MMP, great move MMP!).
If DvC was a case that just didn’t ask a sensible legal question then yes I think Parliament could and should save the courts some time.
I’m done for tonight Burt, sleep well.
rOb
Sorry, now responding to your: 11:54
Yes, perfect. There is no beating up to be done, this has been enlightening, for many I’m sure.
I might be at Drinking Liberally one night, I’ll be the guy handing out bananas
Re: a summary. Excellent idea, lets see how Anita feels about that.
I’m off for some sleep. Goodnight all.
Red Logix
Yes you will be talking to a right wing voter this time previuosly a Labour Voter for 35 years.
Also my parents are switching and my Mother use to run Cake Stalls etc for the Labour Party for a number of years.
Why is the question you should be asking your self. Let look at your answer to The Economic vision for New Zealand it just showed there isn’t one!!
No one knows it no KPI (Key performance indicators) no CSF (Critical success Factors)no reporting back on New Zealand’s short term , long term economic vision.It takes more than School Teachers and Union Leaders to strategise an Economic plan you need Business input as well this Labour Government is diametrically opposed to Business and wants to punish anyone earning good money (Envy Politics) So they could never write one.
I don’t doubt you are working hard most Fabian Socialist do and the public only see 10% of what they are really doing the rest flys under the public radar.
They fill up Education departments , Government departments etc etc with people of their own ilk to report back.
If you think the polls are lying you are sincerely deceived in fact I think they are worse for Labour than these polls are showing my prediction National by 67 to 70 seats in the house.
Your comments on Michael Cullen show more than a little naivety he was told by treasury in 2005 to give tax cuts he called this an ideological burp.
He was wrong any tax cuts he gives now appear and are disingenuous to the public. He is ideologically opposed to tax cuts.
It takes more than sarcasm and snide remarks to be a good Minister of Finance people see through it after a while.
The public are voting with their feet they want to get Off Helen’s and H2s Fabian Socialist Red Bus trip. The Social Engineering experiment has failed!!
The tipping point has been more than reached. Its time for fresh Vision for Accountability and Personal Responsibility to be part of New Zealand again.
As I go I am reminded of the famous quote about Socialism
“Socialism is the plundering of a countries resources by those who will never be held accountable”
Good luck I hope that not too many of your Red Balloons are popped on Election Day.
By the way I am nothing to do with Crosby Textor I am just a voting Joe Bloggs some of the masses have brains and can think for themselves without indoctrination.
fake Rob: Well I for one think you’re just bullshitting.
I’ve been a member of the NZLP for a long time. I’ve never seen a cake stall being used for fund raising. Cakes are expensive to make (just go and buy one) and wouldn’t give a good return.
Sounds like someone who only has a vague idea of what goes on at the front-line. You look like you’re running a line that we see here reasonably frequently. I’ll add that to the programming list for after the election.
Has anyone ever seen cake stalls used in the last 20 years?
Rob
You are not talking to people who are completely objective about this.
Yes parliament has extraordinary powers, it’s parliament so that’s a given. However, supporting parliament acting on behalf of the judiciary to determine if people have broken laws is supporting the unconventional use of conventionally separated powers. Further, not surprisingly I guess, having shown comfort with parliament assuming the role of the judiciary these people then suggest it’s valid for parliament to assume the role of the Crown to judge a cases suitability for Court.
Now this position these people take (to defend actions that on the face of it are extremely questionable) is all very well (in their minds) when they are living under a govt that they personally have complete confidence in.
You could ask them how would they fell about parliament exercising all the conventionally separate powers of the state when there is a govt they don’t like and/or trust. How would they feel about National with 75 seats governing alone making rulings conventionally made by the courts, or assuming the role of the Crown to decide when a case can be tried…
I don’t they will put there feet in those shoes whole heartedly and think about it objectively, it would be unthinkable for them to have a National govt running unchecked by the conventions that enable us to call our system a democracy, but they defend it for now because in their minds the current govt is doing nothing wrong.
The genie has been let free from the bottle, it’s all good when we are the ones asking for the wishes and holding the lamp, how powerless are people who oppose me now… how would I fell about it when people who would rather I were silent are holding the lamp?
Do you think we could get govt funding to make a play with this thread ?
Rob who is not r0b, if you wouldn’t mind, your comments are fairly generic and could be taken to any active thread. This thread has been scheduled for termination!
Anita, if you’re about, could you please read the proposal for winding this up at about 11:54pm above. If you’re agreeable, I will try and post a summary late tonight, then it’s Burt’s turn.
Burt I might be at Drinking Liberally one night, I’ll be the guy handing out bananas
If I’m ever there Burt (not likely) I will surely buy you a beer.
Cheers all.
Iprent
Can tell you it has happened in Nelson these are your core supporters that are leaving the party now. The Maori vote is all so dissipating. They want more aspirational Leadership they want to know that their lot is not being on the Welfare or DPP
Fake Rob,
Your reading comprehension skills are evidently poor. I will spell this out slowly. Dr Cullen is a Keynsian.
This means that govt keeps taxes and public sector savings high during the good times.
And then relaxes these settings during difficult times as a counterbalancing moderation to the natural business cycle that would otherwise experience much larger and more damaging swings.
Your accusation that he is ONLY doing cutting taxes because it is an election year is nonsense. One in every three years is an election year. All you are doing is repeating John Key who is attacking EVERYTHING this govt is doing at the moment because “it’s election year”. It’s lazy, dishonest muddled thinking.
Still in all of your rhetoric against the Labour Party, you have still failed to tell us what you think the National Party will do.
Oh… aspirational Leadership… you really have swallowed the Blue Pill haven’t you?
Red Logix
There is a major problem with your theory on trying to rationalise Cullen’s stuff up. He didn’t keep Government spending under control as already noted by most political commentators and the IMF. Noticed you haven’t mentioned Labours Economic vision because they don’t have one. We have dropped down the OECD ladder despite Helen’s assurances we would go up the ratings. I believe Key will change the RMA ,compliance costs are hideous I see that Wellington City Council has just increased Building permit cost by 40% again this year what a joke!!. He will cut back on government spending and bureaucracy there is plenty of that. Will bring in privately operated prisons,restucture Acc again. Make it easier for businesses to work in New Zealand again, attract foreign investment.Decrease taxes.Improve the quality of Health spend. Get tough on crime instead of the wishy washy aproach we have at the moment. Oh so much to do to do what a mess to pick up!!
I believe Key will change the RMA ,compliance costs are hideous I see that Wellington City Council has just increased Building permit cost by 40% again this year what a joke!!.
The cost of the permit is usually a small portion of the total build. The big question is usually the cost of delays and the consequent finance costs. The delays are caused by a shortage of skilled staff in this areas, and extra risks Councils have had to assume after National triggered the “leaky building” syndrome with their dismantling of controls inthe 90′s.
Still if you want the RMA gutted, just don’t come whining here if someone builds a waste fish reprocessing plant over the road and upwind of your place.
He will cut back on government spending and bureaucracy there is plenty of that.
Discussed and dealt to previously. At most Key has identified about $500m of possble savings, while crippling his govts ability to actually implement any new initiatives.
Will bring in privately operated prisons,restucture Acc again.
Along with PPP’s have been proven from overseas experience a recipe for massive theft of public monies and assets. The private entity gets the cash, the public is landed with the risks.
Make it easier for businesses to work in New Zealand again,
New Zealand is routinely rated by the IMF as one of the easiest places in the world for businesses. Running this line tells me that you have NEVER worked commercially overseas.
attract foreign investment.
It is widely recognised that New Zealand already suffers from a massive structural imbalance in this respect. Far too much of NZ is already owned overseas, and these companies repatriating profits is the MAJOR (>85%) of our No1 economic problem, the current account deficit.
Why did you mot mention NZ investing overseas?
Decrease taxes.
By how much? This claim means nothing without numbers, costs and specifics. Raise your game.
Improve the quality of Health spend.
Yes and we all love apple pie too. Again, how? What specifics do you have in mind? What has National said that convinces you they know how to manage this large and difficult portfolio better than Labour?
Get tough on crime instead of the wishy washy aproach we have at the moment.
You are just spewing up standard election year rhetoric. No solutions, just a hateful dishonest slogan.
Oh so much to do to do what a mess to pick up!!
By all real measures NZ has never been better off. You’ve swallowed the John Key “New Zealand sucks” campaign.
Red logix
I guess you have put it so well that is why all those people wont vote Labour this time. As like you they cant see that they have done anything wrong in fact they must have been a perfect Government that is why they are polling so well at the moment. How does the old saying go “Knowing our mistakes is half our cure” I guess if you never knew you made any you will just keep on doing it until one day you aren’t the Government.
r0b/burt,
Yes ok
Sorry for the delay, looong day at work.
Yes ok Sorry for the delay, looong day at work.
Thanks! Sympathies (I’m still there).
Burt, I had a dig into why ACT didn’t vote for DvC (for the amendment to allow it to proceed). In the Hansard records of the debate you can find a comment from Rodney Hide that appears to be relevant here:
Burt, you may want to reconsider either your “an unchecked parliament = NZ is a banana republic” line, or your support for ACT.
Anyway – summary tonight (late, sorry).
Anyway – summary tonight (late, sorry).
I should have said of course, we’re not in any rush to get this done.
(Comment 300 in this thread!).
r0b,
From the Committee stage:
They don’t seem to have voted on any of that (enormous) series of amendments, but voted on the Part 2 vote immediately afterwards. Either they couldn’t be bothered keeping anyone in the House for the amendments, or they didn’t want their votes to be recorded.
The plot thickens!
I’m off home. Will try and post my first draft of the summary (much) later tonight. No one is under any obligation to follow up quickly, I think the world has moved on…
rOb
I think that snippet is hard to put into context against other things Rodney said in that same speech, perhaps that only talks to the misappropriated spending not the alleged illegal spending, I’ll read some more from various people on that page and digest it some more.
Rodney also said.
Later…
This is sounding more like the principled man I think parliament needs more of
I love Dunne’s comment about “electioneering”.
Let me paraphrase…
We are kinda stuck here because the way we have always done it, precious status quo, well, ummm… that broke the laws we wrote for ourselves… Bit of a blast that but laws can be confusing when there are elections to win, so we excusing everything for 14 years, NOW because it’s urgent with an election 2 years away.
Seriously, it’s gold – Write, enact, abuse, validate! I guess we can’t be a banana republic, if we were parliament wouldn’t bother to write a big word like “electioneering” into it’s laws because words like that are very confusing. Although not having election finance laws would help parliament convincing people that it knows what it’s doing because it wouldn’t need to say it can’t understand it’s own laws when status quo and what’s written down diverge.
rOb
To save crashing lprent’s server, how about emailing me the draft, I’ll email it back to you and we can exchange the drafts that way. Might keep a little dirty linen out of the blog sphere as any explaining to each other what we mean is less restricted, as it’s not a public exchange.
You can mail me at.
p r i n c p l e [underscore] c r u s a d e r (at)
y a h o o (dot)
c o (dot)
n z
Feel free to attach the draft as a word doc or html file etc. Oh, BTW, The ‘I’d buy you a beer’ is mutual.
I do wonder some times if parliament ever thinks through the logical consequences of it’s actions. By exercising RV for election funding years over 14 years parliament can say: No electoral funding law have been broken in the last 14 years.
Their actions in passing the RV logically equates to.
No electoral funding laws have been followed in the last 14 years.
I did some digging around about the separation of powers, in a reference I have (The New Zealand Legal System – Structures, processes and legal theory – 1995)
A short section on the judiciary role of parliament talks about parliament overruling the court (yes – specifically the court, not passed judgment in advance of a court decision) on parliamentary privilege. I think it’s reasonable for parliament to define it’s ‘privilege’ because it’s ‘privilege’ is it’s own right and/or property, unlike public money which it the Crown’s.
It’s a bit like me saying I can say WTF I like in my own house, but it’s not to say I can hide stolen property in it with impunity.
But at the end of the day, parliament can do what parliament wants and it’s not illegal so – who am I to say it should follow conventions.
Sorry, I wasn’t trying to be misleading about the judicial powers of parliament. The test says: “”Parliament, on occasions, exercises an apparent judicial function. Once such occasion… ”
A single example which references the court of appeal being overridden by parliament refers to parliamentary privilege. I don’t assert from that that there has never been other instances, but I can infer there is no specified description of that role for parliament. (according to the text I have).
Note to readers: this is an old thread where an old debate is winding up. You’ll find the active threads on the front page.
As discussed above, this comment is the first draft of a summary of the discussion. This is r0b’s summary, to be edited by Burt (please use your nice strikethrough edits so Anita can see), Anita will do a final edit (thanks!) and that’s it.
Links in this version are in plain text so Burt and Anita can edit. Maybe when Burt and Anita are finished, Lynne could (if he feels like it) do a retrospective edit of the final version to declutter and turn the links into nice clickable words.
=== summary begins ===
This long strange thread strayed far from its original topic. Around about here
http://www.thestandard.org.nz/?p=2289#comment-63642
it started to morph into an exploration of one of the several funding controversies surrounding the 2005 election (summaries here and here):
http://en.wikipedia.org/wiki/2005_New_Zealand_election_funding_controversy
http://www.nzherald.co.nz/feature/story.cfm?c_id=1501118&objectid=10405611&pnum=0
Of these many controversies the issue that we explored was the nature of the spending that that the Auditor General (in 2006) identified as improper, and the focus in particular was the nature of the retrospective validation of government spending that followed. Much of the thread is a discussion between Burt, who regarded the validation as unacceptable, and r0b, who defended it. There were many valuable contributions from many other participants.
This summary describes the more-or-less agreed state of play when we gave up. The final wording of the summary (since she emerged as a good referee) is Antia’s. Many issues were clarified and we’re pretty confident of them. Some issues weren’t covered in depth, we ran out of energy to pursue it further. None of us are lawyers or politicians or particular experts – this is just people chatting on a blog. But here is the summary (for what it’s worth).
The urban legend
The story that many people believe goes something like this. During the 2005 election the political parties spent taxpayer money illegally. In 2006 the Auditor General (AG) caught them out. At that point the governing parties retrospectively changed the law to get themselves out of legal trouble. But the public outcry (“Pay it back!”) forced them to pay back the stolen money too.
What actually happened was more complicated and ambiguous than that.
The legal situation
Political parties are allowed to spend a certain amount of public / government money on communicating with the electorate. This is not supposed to be used for “electioneering” (which used to mean asking for money or votes). The process is administered by a branch of government called Parliamentary Services (PS) and falls under a law called the Public Finance Act.
During the 2005 election all parties used this money on various newsletters and advertisements. In a 2006 review of the spending in the three months prior to the 2005 election The Auditor General (AG) found that Parliamentary Services (PS) had approved spending on many items that the AG deemed to be electioneering, and therefore inappropriate. Technically PS had spent outside their “appropriation”.
It is not infrequent for branches of government to spend outside their appropriation, often to the tune of many millions of dollars (usually for spending relating to unexpected events). The standard fix is a process called “validation”, or “retrospective validation”, to later OK the spending. (Laws are never supposed to apply retrospectively – you can’t “create crimes in the past” – but retrospective validation is regarded as a special case which actually strengthens the law, see here).
http://www.thestandard.org.nz/?p=2289#comment-64639
The AGs rulings in 2006 created a situation where the Government’s “books” were possibly in an unlawful state. This was fixed by the usual practice of retrospective validation of unappropriated spend; but this case was unusual in that it was rushed and that it validated (because of the timing of the relevant laws) over 15 years of possible unappropriated spend. This was done at the advice of Treasury,
http://img.scoop.co.nz/media/pdfs/0610/TreasPSCab.pdf
and legally it related to the Public Finance Act. It had nothing to do with electoral law.
Related legal issues
There are other legal issues relating to the 2005 election. One of these was the spending cap for each party and whether it was breached. This is a matter of electoral law, but it has absolutely nothing to do (legally) with the issues described above. Separate laws and separate issues.
Another related legal matter is the Darnton vs Clark court case described below.
Moral issues
With respect to the political parties there were (for the events we are discussing) no legal complications. They did not break the law, and the retrospective validation did not absolve them of anything. But these events all took place within the fundamental democratic process of an election. As well as legal issues there are another set of considerations that for want of a better word we can call moral issues.
“The case for the prosecution” would note that all of the parties (except The Progressives) received funding for items that that AG regarded as electioneering, in some cases blatant electioneering. They “pushed the envelope” hard, and placed Parliamentary Services in a difficult position. All parties were explicitly warned by the AG to be careful, and all parties (except The Progressives) got it wrong.
“The case for the defence” would note that the fact that all parties got it wrong suggests that either all parties actively decided to break the rules, or that the rules (as interpreted by the AG in 2006) were not clear to the parties in 2005. Some parties argued that the AGs interpretation was in fact wrong, and noted that Rod Donald, the MP most responsible for writing them, was judged to have got them wrong (when the AG identified inappropriate items from The Greens). None the less, all parties agreed to abide by the AGs ruling.
In some sense parties admitted their moral culpability, and somewhat made amends, when they agreed to pay the money back. The electorate also applied its own punishment to some parties (but not others!) in the opinion polls.
Events following the AGs report
The AG detailed the inappropriate spending for all parties. He noted that Parliamentary Services (PS) was responsible, and had not interpreted the rules correctly. But he did not hold PS to blame, noting that they were placed in a situation where they could not exercise their judgement effectively, and that the whole accountability framework was confused and lacked transparency. In short, it was a systems failure. He recommended a review of all systems.
Parliament moved quickly (“under urgency”) to pass legislation that did two things: (1) set in place temporary rules and a process for reviewing and creating new permanent rules, and (2) retrospectively validate the unappropriated spending as described above. Point 1 had to happen quickly so that the government could continue to function. Point 2 had to happen at some point, and it was logistically convenient for the government to act as it did and handle 1 and 2 together (as per the Treasury advice linked above). But the fact that 2 (retrospective validation) happened quickly relates now to another aspect of the controversy, Darnton cs Clark.
Darnton vs Clark
This is a legal issue that none of us had any background in, and we were running out of steam, so we don’t know much. During the period within which the government books were illegal a court case began. According to Wikipedia:
http://en.wikipedia.org/wiki/Bernard_Darnton
“Bernard Darnton [leader of the Libertarianz Party] filed proceedings in the High Court, suing Helen Clark for allegedly misappropriating public funds to pay for the Labour Party’s pledge cards during the 2005 election. Some commentators labelled the lawsuit a stunt, although it received some media coverage as concern about the “pledge card” funding grew.”
One of the effects of the retrospective validation was to remove the legal grounds for the case – to “kill it off”. Some have suggested that the reason that the validation process was rushed was to deliberately kill this case.
When the validation legislation was debated in Parliament an amendment was proposed to allow this case to continue after validation. Only the National Party voted for the amendment, which was lost, so that validation killed the case. In effect, Parliament made a separate explicit decision not to allow the case to go forward. Some would suggest that they saw no merit in it, and that the issues it raised were being handled by the internal reviews. Others would suggest that Parliament was hiding itself from the scrutiny of the courts. Whichever, Parliament was perfectly within its rights, as it is the ultimate legal authority in NZ.
http://www.thestandard.org.nz/?p=2289#comment-64806
Conclusion
The urban legend version of events is very far from true. The legal issues were complicated and related only to Parliamentary Services. The moral issues probably came out in the wash of public opinion. However, there is enough complexity and ambiguity that some can still reasonably believe that “something fishy went on”.
The whole affair illustrates the complexity of electoral funding, and there is a whole story (untold in this summary) about the interaction between private party funding and public funding in this affair. Some would argue that such controversies illustrate the need for a much simpler and more transparent system of public or “state funding” of political parties (see some debate on this beginning here).
http://www.thestandard.org.nz/?p=2289#comment-64492
As a final comment, it was an interesting discussion, I think we all learned a lot. And while we might not have achieved world peace, at least we managed to have a pretty constructive discussion.
Hey Burt.
I just tried to post my first draft of the summary. It seems to have been eaten by the spam trap (too many links – but it will probably appear at some point). Then I saw your comment:
To save crashing lprent’s server, how about emailing me the draft,
I don’t think we could crash Lynne’s server, I don’t think he’d let us!
I’m happy to stick to the process we agreed, you pick up the text here and do a strike-through edit version for Anita, she does the final version. But if you think (when you see the text here) that won’t work then I am certainly happy to email it to you.
I agree that the Hansard debates are a rich source of quotable snippets, but I’m not going to engage further, this needs to end at some point. I would ponder your banana republic rhetoric vs ACTs position on parliament though if I was you.
Goodnight.
[lprent: right]
rOb
You are now quoting Rodney out of context, Rodney is saying how it is – now. The line immediately before your attempt to spin what he said
“But the way to tidy up the rules is not to rush legislation through Parliament. It is not actually Parliament’s legislation that defines how we can spend the money. There is a reason for that: [INSERT OUT OF CONTEXT QUOTE HERE DESCRIBING WHAT RV ACHIEVES] So what we should be doing, rather than rushing in here in Parliament to change the rules…”
I would have thought that context was pretty obvious seeing it was in a paragraph that started…
“I listened most carefully to Dr Michael Cullen’s reasons…” and he did say The public has a right to know how we spend its money. many many times, that must have also been a clue that Rodney was describing something other than his desired position.
You have lost some credibility by quoting out of context so blatantly to attack his principles.
But yes, lets get to the summary, because you quoted Rodney out of context, I’ll show no mercy
Morning Burt.
Re Rodney, the “out of context quote” was only about not wanting the courts messing with parliament:
I don’t see how the context material changes anything about Rodney’s opinion on the fact that the courts should not judge parliament. Combine that with the greater context, ACT effectively abstained on the DvC vote, and it seems to me that Rodney’s views on this are very clear indeed.
But whatever, I’ll repost the summary below (very slightly tidied from last night so don’t use the old one if it appears). I have slightly tweaked the links – [h]ttp – so hopefully this doesn’t get caught by the spam trap.
I’ll show no mercy
Wasn’t expecting any! Here we go (I hope)…
Note to readers: this is an old thread where an old debate is winding up. You’ll find the active threads on the front page.
As discussed above, this comment is the first draft of a summary of the discussion. This is r0b’s summary, to be edited by Burt (please use your nice strikethrough edits so Anita can see), Anita will do a final edit (thanks!) and that’s it.
Links in this version are in plain text so Burt and Anita can edit. Maybe when Burt and Anita are finished, Lynne could (if he feels like it) do a retrospective edit of the final version to declutter and turn the links into nice clickable words.
=== summary begins ===
This long strange thread strayed far from its original topic. Around about here
[h]ttp://www.thestandard.org.nz/?p=2289#comment-63642
it started to morph into an exploration of one of the several funding controversies surrounding the 2005 election (summaries here and here):
[h]ttp://en.wikipedia.org/wiki/2005_New_Zealand_election_funding_controversy
[h]ttp://www.nzherald.co.nz/feature/story.cfm?c_id=1501118&objectid=10405611&pnum=0
Of these many controversies the issue that we explored was the nature of the spending that that the Auditor General (in 2006) identified as improper, and the focus in particular was the nature of the retrospective validation of government spending that followed. Much of the thread is a discussion between Burt, who regarded the validation as unacceptable, and r0b, who defended it. There were many valuable contributions from many other participants.
This summary describes the more-or-less agreed state of play when we gave up. The final wording of the summary (since she emerged as a good referee) is Antia’s. Many issues were clarified and we’re pretty confident of them. Some issues weren’t covered in depth, we ran out of energy to pursue it further. None of us are lawyers or politicians or particular experts – this is just people chatting on a blog. But here is the summary (for what it’s worth).
The urban legend
The story that many people believe goes something like this. During the 2005 election the political parties spent taxpayer money illegally. In 2006 the Auditor General (AG) caught them out. At that point the governing parties retrospectively changed the law to get themselves out of legal trouble. But the public outcry (“Pay it back!”) forced them to pay back the stolen money too.
What actually happened was more complicated and ambiguous than that.
The legal situation
Political parties are allowed to spend a certain amount of public / government money on communicating with the electorate. This is not supposed to be used for “electioneering” (which used to mean asking for money or votes). The process is administered by a branch of government called Parliamentary Services (PS) and falls under a law called the Public Finance Act.
During the 2005 election all parties used this money on various newsletters and advertisements. In a 2006 review of the spending in the three months prior to the 2005 election The Auditor General (AG) found that Parliamentary Services (PS) had approved spending on many items that the AG deemed to be electioneering, and therefore inappropriate. Technically PS had spent outside their “appropriation”.
It is not infrequent for branches of government to spend outside their appropriation, often to the tune of many millions of dollars (usually for spending relating to unexpected events). The standard fix is a process called “validation”, or “retrospective validation”, to later OK the spending. (Laws are never supposed to apply retrospectively – you can’t “create crimes in the past” – but retrospective validation is regarded as a special case which actually strengthens the law, see here).
[h]ttp://www.thestandard.org.nz/?p=2289#comment-64639
The AGs rulings in 2006 created a situation where the Government’s “books” were possibly in an unlawful state. This was fixed by the usual practice of retrospective validation of unappropriated spend; but this case was unusual in that it was rushed and that it validated (because of the timing of the relevant laws) over 15 years of possible unappropriated spend. This was done at the advice of Treasury,
[h]ttp://img.scoop.co.nz/media/pdfs/0610/TreasPSCab.pdf
and legally it related to the Public Finance Act. It had nothing to do with electoral law.
Related legal issues
There are other legal issues relating to the 2005 election. One of these was the spending cap for each party and whether it was breached. This is a matter of electoral law, but it has absolutely nothing to do (legally) with the issues described above. Separate laws and separate issues.
Another related legal matter is the Darnton vs Clark court case described below.
Moral issues
With respect to the political parties there were (for the events we are discussing) no legal complications. They did not break the law, and the retrospective validation did not absolve them of anything. But these events all took place within the fundamental democratic process of an election. As well as legal issues there are another set of considerations that for want of a better word we can call moral issues.
“The case for the prosecution” would note that all of the parties (except The Progressives) received funding for items that that AG regarded as electioneering, in some cases blatant electioneering. They “pushed the envelope” hard, and placed Parliamentary Services in a difficult position. All parties were explicitly warned by the AG to be careful, and all parties (except The Progressives) got it wrong.
“The case for the defence” would note that the fact that all parties got it wrong suggests that either all parties actively decided to break the rules, or that the rules (as interpreted by the AG in 2006) were not clear to the parties in 2005. Some parties argued that the AGs interpretation was in fact wrong, and noted that Rod Donald, the MP most responsible for writing them, was judged to have got them wrong (when the AG identified inappropriate items from The Greens). None the less, all parties agreed to abide by the AGs ruling.
In some sense parties admitted their moral culpability, and somewhat made amends, when they agreed to pay the money back. The electorate also applied its own punishment to some parties (but not others!) in the opinion polls.
Events following the AGs report
The AG detailed the inappropriate spending for all parties. He noted that Parliamentary Services (PS) was responsible, and had not interpreted the rules correctly. But he did not hold PS to blame, noting that they were placed in a situation where they could not exercise their judgement effectively, and that the whole accountability framework was confused and lacked transparency. In short, it was a systems failure. He recommended a review of all systems.
Parliament moved quickly (“under urgency”) to pass legislation that did two things: (1) set in place temporary rules and a process for reviewing and creating new permanent rules, and (2) retrospectively validate the unappropriated spending as described above. Point 1 had to happen quickly so that the government could continue to function. Point 2 had to happen at some point, and it was logistically convenient for the government to act as it did and handle 1 and 2 together (as per the Treasury advice linked above). But the fact that 2 (retrospective validation) happened quickly relates now to another aspect of the controversy, Darnton cs Clark.
Darnton vs Clark
This is a legal issue that none of us had any background in, and we were running out of steam, so we don’t know much. During the period within which the government books were illegal a court case began. According to Wikipedia:
[h]ttp://en.wikipedia.org/wiki/Bernard_Darnton
“Bernard Darnton [leader of the Libertarianz Party] filed proceedings in the High Court, suing Helen Clark for allegedly misappropriating public funds to pay for the Labour Party’s pledge cards during the 2005 election. Some commentators labelled the lawsuit a stunt, although it received some media coverage as concern about the “pledge card” funding grew.”
One of the effects of the retrospective validation was to remove the legal grounds for the case – to “kill it off”. Some have suggested that the reason that the validation process was rushed was to deliberately kill this case.
When the validation legislation was debated in Parliament an amendment was proposed to allow this case to continue after validation. Only the National Party voted for the amendment, which was lost, so that validation killed the case. In effect, Parliament made a separate explicit decision not to allow the case to go forward. Some would suggest that they saw no merit in it, and that the issues it raised were being handled by the internal reviews. Others would suggest that Parliament was hiding itself from the scrutiny of the courts. Whichever, Parliament was perfectly within its rights, as it is the ultimate legal authority in NZ.
[h]ttp://www.thestandard.org.nz/?p=2289#comment-64806
Conclusion
The urban legend version of events is very far from true. The legal issues were complicated and related only to Parliamentary Services. The moral issues probably came out in the wash of public opinion. However, there is enough complexity and ambiguity that some can still reasonably believe that “something fishy went on”.
The whole affair illustrates the complexity of electoral funding, and there is a back-story (untold in this summary) about the interaction between private party funding and public funding. Some would argue that such controversies illustrate the need for a much simpler and more transparent system of public or “state funding” of political parties (see some debate on this beginning here).
[h]ttp://www.thestandard.org.nz/?p=2289#comment-64492
As a final comment, it was an interesting discussion, I think we all learned a lot. And while we might not have achieved world peace, at least we managed to have a pretty constructive debate.
Note to readers: this is a
n oldvery interesting thread where an oldfascinating debate is winding up. You’ll find the active threads on the front page.As discussed above, this comment is the
firstsecond draft of a summary of the discussion. This isr0b’sburt’s summary, to be edited byBurt(please use your nice strikethrough edits so Anita can see), Anita will do a final edit (thanks!) and that’s it.Links in this version are in plain text so Burt and Anita can edit. Maybe when Burt and Anita are finished, Lynne could (if he feels like it) do a retrospective edit of the final version to declutter and turn the links into nice clickable words.
=== summary begins ===
This long strange thread strayed far from its original topic. Around about here
[h]ttp://www.thestandard.org.nz/?p=2289#comment-63642
it started to morph into an exploration of one of the several funding controversies surrounding the 2005 election (summaries here and here):
[h]ttp://en.wikipedia.org/wiki/2005_New_Zealand_election_funding_controversy
[h]ttp://www.nzherald.co.nz/feature/story.cfm?c_id=1501118&objectid=10405611&pnum=0
Of these many controversies the issue that we explored was the nature of the spending that that the Auditor General (in 2006) identified as improper, and the focus in particular was the nature of the retrospective validation of government spending that followed. Much of the thread is a discussion between Burt, who regarded the validation as
unacceptableindefensible, and r0b, who defended it. There were many valuable contributions from many other participants.This summary describes the more-or-less agreed state of play when we
gave updecided it was time to summarise. The final wording of the summary (since she emerged as a good referee) is Antia’s. Many issues were clarified and we’re pretty confident of them. Some issues weren’t covered in depth, we ran out of energy to pursue it further. None of us are lawyers or politicians or particular experts – this is just people chatting on a blog. But here is the summary (for what it’s worth).The urban legend
The story that many people believe goes something like this. During the 2005 election the political parties spent taxpayer money illegally. In 2006 the Auditor General (AG) caught them out. At that point the governing parties retrospectively changed the law to get themselves out of legal trouble. But the public outcry (‘Pay it back!’) forced them to pay back the stolen money too.
What actually happened was more complicated and ambiguous than that.
The legal situation
Political parties are allowed to spend a certain amount of public
/ governmentmoney on communicating with the electorate. This is not supposed to be used for “electioneering’ (which used to mean asking for money or votes). The process is administered by a branch of government called Parliamentary Services (PS) and falls under a law called the Public Finance Act.During the 2005 election all parties used this money on various newsletters and advertisements. In a 2006 review of the spending in the three months prior to the 2005 election The Auditor General (AG) found that Parliamentary Services (PS) had approved spending on many items that the AG deemed to be electioneering, and therefore inappropriate. Technically PS had spent outside their “appropriation’.
It is not infrequent for branches of government to spend outside their appropriation, often to the tune of many millions of dollars (usually for spending relating to unexpected events). The standard fix is a process called “validation’, or “retrospective validation’, to later OK the spending. (Laws are never supposed to apply retrospectively – you can’t “create crimes in the past’ – but retrospective validation is regarded as a special case which actually strengthens the law, see here).
[h]ttp://www.thestandard.org.nz/?p=2289#comment-64639
The AGs rulings in 2006 created a situation where the Government’s “books’ were possibly in an unlawful state. This was fixed by the usual practice of retrospective validation of unappropriated spend; but this case was unusual in that it was rushed and that it validated (because of the timing of the relevant laws) over 15 years of possible unappropriated spend. This was done at the advice of Treasury,
[h]ttp://img.scoop.co.nz/media/pdfs/0610/TreasPSCab.pdf
and legally it related to the Public Finance Act. It had nothing to do with electoral law. Treasury did not (and can not) tell parliament that it should make illegal spending legal via RV, rather that misappropriated money by PS should be validated.
Related legal issues
There are other legal issues relating to the 2005 election. One of these was the spending cap for each party and whether it was breached. This is a matter of electoral law, but it has absolutely nothing to do (legally) with the issues described above. Separate laws and separate issues.
Another related legal matter is the Darnton vs Clark court case described below.
Moral issues
With respect to the political parties there were (for the events we are discussing) no legal complications. They did not break the law, and the retrospective validation
did notappears to the public to absolve them of anythinglegal consequences under the laws they wrote. But these events all took place within the fundamental democratic process of an election. As well as legal issues there are another set of considerations that for want of a better word we can call moral issues.“The case for the prosecution’ would note that all of the parties (except The Progressives) received funding for items that that AG regarded as electioneering, in some cases blatant electioneering. They “pushed the envelope’ hard, and placed Parliamentary Services in a difficult position. All parties were explicitly warned by the AG to be careful, and all parties (except The Progressives) got it wrong.
“The case for the defence’ would note that the fact that nearly all parties got it wrong suggests that either all parties actively decided to break the rules they wrote, or that the rules (as interpreted by the AG in 2006) were not clear to the parties in 2005. Some parties argued that the AGs interpretation was in fact wrong, and noted that Rod Donald, the MP most responsible for writing them, was judged to have got them wrong (when the AG identified inappropriate items from The Greens). None the less, all parties agreed to abide by the AGs ruling.
In some sense parties admitted their moral culpability, and somewhat made amends, when they agreed to pay the money back. The electorate also applied its own punishment to some parties (but not others!) in the opinion polls.
Events following the AGs report
The AG detailed the inappropriate spending for all parties. He noted that Parliamentary Services (PS) was responsible, and had not interpreted the rules correctly. But he did not hold PS to blame, noting that they were placed in a situation where they could not exercise their judgement effectively, and that the whole accountability framework was confused and lacked transparency. In short, it was a systems failure. He recommended a review of all systems.
Parliament moved quickly (‘under urgency’) to pass legislation that did two things: (1) set in place temporary rules and a process for reviewing and creating new permanent rules, and (2) retrospectively validate the unappropriated spending as described above. Point 1 had to happen quickly so that the government could continue to function. Point 2 had to happen at some point, and it was logistically convenient for the government to act as it did and handle 1 and 2 together (as per the Treasury advice linked above with ). But the fact that 2 (retrospective validation) happened quickly relates now to another aspect of the controversy, Darnton cs Clark.
Darnton vs Clark
This is a legal issue that none of us had any background in, and we were running out of steam, so we don’t know much. During the period within which the government books were illegal a court case began. According to Wikipedia:
[h]ttp://en.wikipedia.org/wiki/Bernard_Darnton
“Bernard Darnton [leader of the Libertarianz Party] filed proceedings in the High Court, suing Helen Clark for allegedly misappropriating public funds to pay for the Labour Party’s pledge cards during the 2005 election. Some
commentatorsappologists labelled the lawsuit a stunt, although it received some media coverage as concern about the “pledge card’ funding grew.’One of the effects of the retrospective validation was to remove the legal grounds for the case – to “kill it off’. Some have suggested that the reason that the validation process was rushed was to deliberately kill this case.
When the validation legislation was debated in Parliament an amendment was proposed to allow this case to continue after validation. Only the National Party voted for the amendment, which was lost, so that validation killed the case. In effect, Parliament made a separate explicit decision not to allow the case to go forward. Some would suggest that they saw no merit in it, and that the issues it raised were being handled by the internal reviews. Others would suggest that Parliament was hiding itself from the scrutiny of the courts. Whichever, Parliament was
perfectlylegally within its rights, as it is the ultimate legal authority in NZ, although by convention parliament should not judge peoples actions under the law.[h]ttp://www.thestandard.org.nz/?p=2289#comment-64806
Conclusion
The urban legend version of events is
very far from truewhat rOb is defending. The legal issues were complicated and related only to Parliamentary Services, because parliament used it’s power to create any law it wants to retrospectively state it did not breach electoral funding law. The moral issues probably came out in the wash of public opinion. However, there is enough complexity and ambiguity that some can still reasonably believe that “something fishy went on’.The whole affair illustrates the complexity of electoral funding, and there is a back-story (untold in this summary) about the interaction between private party funding and public funding. Some would argue that such controversies illustrate the need for a much simpler and more transparent system of public or “state funding’ of political parties (see some debate on this beginning here).
[h]ttp://www.thestandard.org.nz/?p=2289#comment-64492
As a final comment, it was an interesting discussion, I think we all learned a lot. And while we might not have achieved world peace, at least we managed to have a pretty constructive debate.The govt did not explicitly provide a reason as to why it used it’s undefined role of acting as the judiciary adjudicating over alleged breaches of it’s own laws, other than it was legal for it to do so. Parliaments undefined role to overrule the judiciary has been used before. In one known instance it was used to defend MP’s parliamentary privilege against a court ruling. It appears it has never been used before to defend parliament against allegations of spending public money illegally.
In the absence of a valid reason (other than reminding us that it is legally was entitled to do so) there appears to be no defense other than it was legal and convenient at that time.
That was quick Burt! Over to Anita…
Ahhh – one technical note, Burt you have one edit in a quote from Wikipedia – can’t do that!