Written By: - Date published: 4:14 pm, May 21st, 2008 - 138 comments
Categories: dpf, election funding, same old national -
Tags: Electoral Commission, electoral law, epmu, national
It seems National has succeeded in the first step of its campaign to muzzle the EPMU and the fifty thousand workers it represents. Over at the bog our mate Davey is crowing about the high court win that recognises the union as a legal person for the purposes of the act. This still means that the Electoral Commission has to decide whether the union is sufficiently involved in the affairs of the Labour Party to be precluded from third-party registration or not but it certainly weakens their case.
There is going to be a lot of gloating from the right over this, but let’s be clear. Crown Law advice was that the EPMU was not a person and it’s clear as day that the EFA was never intended to exclude democratic organisations such as the EPMU from campaigning. This is a weak point of the law that has failed under heavy (and expensive) legal attack by National and it needs to be fixed.
National has repeatedly stated that it does not want the EPMU excluded from its democratic right to campaign for the rights of its members but just wanted to test the law. Given the fact that the EPMU has run aggressive and successful campaigns against National in the past, I don’t think that’s true. But if it is then I would say National better put its money where its mouth is and support an amendment to clear this issue up. I’m not holding my breath on that one.
In the meantime we’ll all just have to wait for the Electoral Commission’s decision.
Facebook
Twitter
Scoopit!
AncientGeek
Apparently all you need is a little common sense to understand the 2007 ACT – but tell that to Labour, Trevor Mallard and the EPMU and see what sort of reaction you get.
Labour have squarely shot themselves in the foot trying to tilt the playing field in their favour, sadly that’s the state of it in a nutshell.
Regarding acting within the law true Burt very true
Also Ancient Geek – one of the main things in the Electoral Finance Act is the definition of election advertising in section 5. What constitutes election advertising is crucial because it decides whether or not your advertising is subject to the EFA. If your ads fall outside that definition then you’re generally not subject to it.
Do you believe that this definition is a clear or good definition or do you agree with the Electoral Commission Chief Executive that “the definition of an election advertisement was still “a large grey area”" http://www.nzherald.co.nz/topic/story.cfm?c_id=286&objectid=10511422&pnum=2
Having a definition crucial to EFA issues still very unclear 6 months into election year seems like a fairly crucial error on Labour’s behalf.
Similarly most parties ran blind trusts, especially the Nat’s, so the sources of finance for the election campaign were deliberately hidden. Again this violates the intent of the 1993 act.
This does not violate the intent of the 1993 Act. The point was that anonymity was OK so long as it was anonymity from the party receiving the donation. It was an offence against that Act to disclose the identity of the anonymous donor. In fact, anonymity was a goal of the old legislation. Quite the reverse of how you represent it, AG.
Sceptic
You won’t get much traction on this blog using phrases like “crucial error on Labour’s behalf” – this is all DPF’s and National’s fault – If they had just hung up their campaign intentions and sat quietly waiting for Labour to spend millions of tax payers dollars then none of this would have happened. It’s not fair when Labour need to follow the laws they made for others – it’s got to be somebody else’s fault, the victim mentality of their supporters can’t exists in an environment of being responsible for their own predicament.
Their pollster and party member.
rOb
If you are around, this is an interesting turn of events. I must say you did seem to have it nailed first time around but it appears that greater legal minds than your’s have had the final say.
What now? Do you think the EPMU will continue with it’s planned campaign and Labour will simply count the EPMU spending in it’s own returns? – isn’t this what Labour said the EB & National should have done?
Well, can’t say I have sympathy here for either the EPMU or the Labour Party. If they want to work with each other, well and dandy, but they can’t then claim they’re independent parties under the law.
hs:
They were as far as I’m aware. That is why there was sufficient support to pass the legislation.
Sceptic:
Good question – I don’t know. It wasn’t an area that I looked at because it didn’t really impact at ground level (where I campaign) last time. It is impacting this time, but it is mainly a matter of getting things labelled. The biggest hassle has been getting a definitive answer about exactly what has to be done. But that process is getting close to finishing now that the EC has made some rulings. It is a minor issue.
Ok. Assuming a month or two before the court hears it again (I’m assuming that it will be appealed again), then there should be time for the EPMU to get a decision and decide what they will do well before the election. There are several strategies I can think of off-hand.
it: Skeptic is correct. The affiliated unions were always going to have the hardest time under this law. Thats why there will be a lot of interest in whatever judgment comes out of it. However that was an inevitable consequence of the law mets historic ties. That was always going to be an area that would have to be determined by the courts. Otherwise it left the door open for all sorts of interesting organizational schemes.
Billy:
Quite correct – I stand corrected.
I think, and by the sound of it most people on this thread think, that was a bloody stupid idea. It was the thinnest of chinese walls because there was absolutely no way of enforcing the intent. All it took was a quiet word to tell someone that $x would be turning up, and the entire intent of the old act in that area was violated. Bloody hard to prove anything either. I dislike unenforceable laws.
And ‘sod and others, it is patent nonsense (or, as Joyce used to like saying, ballocks) to suggest that the fault lies with those challenging the law, rather than the law itself. To say that any law can be “cracked” if enough money is thrown at it is just stupid. Rich people have just as much or, in individual circumstances more, reason to break the Securities Act or the Crimes Act or the Property (Relationships) Act, but I do not notice those pieces of legislation “failing” (if that’s what you think it is) in the same way.
“It was the thinnest of chinese walls because there was absolutely no way of enforcing the intent.”
I do not necessarily disagree, but the point is: anonymity was not only encouraged under the old law, it was a legal requirement.
Tane sez
No, I’m pointing out that the National Party’s motives in this case are not pure – in an election year they are trying to silence some of their opponents on a issue where they are weak. They have chosen deliberately to take this course of action when there were others available. Now we have the Orwellian prospect of a party claiming it’s saving free speech by crushing it.
Perhaps I should point out that the Labour Party’s motives in this case are not pure – in an election year they have passed legislation to try to silence some of their opponents on a issue where they are weak. They have chosen deliberately to take this course of action when there were others available. Now we have the Orwellian prospect of supports of this act claiming it’s saving free speech by crushing it.
Harry: another one of those interesting myths. Figure out the timeline and figure when they could have done it.
The act was designed to correct the problems that had shown up so strongly in the 2005 election.
The AG’s final report was released in October 2006, and that required before the detail of the bill could be worked out. It had been openly foreshadowed during and after the election campaign of 2005. Hell – I was pushing for changes in mid-2005 because of the things that were happening. We started preparing to campaign at the start of 2005.
October 2006 was also when Helen announced that it would be put forward in 2007 to be available for the 2008 election. One of the stated intents was to increase the electoral campaign period because 90 days wasn’t working under MMP.
It was put to parliament in July after several drafts and work by the crown law office and had to be completed by December if it was to go into force for the changed campaign period.
Given a 3 year election cycle and the limits – that was really all of the time that was available. Would you have preferred to have not had anything fixed in that bloody stupid 1993 kluge, bearing in mind what happened in 2005?
If the nat’s want to change it, they’re going to have exactly the same constraints. The only reason that the 1993 Act didn’t was it had a full 2 years after the 1990 referendum, and 3 years before the next election. There was a lot of complaining that was too rushed as well (and it showed).
Personally I’d like to see the electoral term raised to 4 and preferably 5 years. It seems reasonable bearing in mind what happens in coalition politics.
Harry – I think that you’ve successfully pointed to the absurdity and irony of the law of unintended consequence. This law MUST have been poorly drafted when to date, the only people to have fallen foul of it were the ;party who proposed it, one of that party’s most experienced politicians, and the party’s most significant affiliate.
Mind you, when the Minister responsible for the legislation says something like this:
“Hon ANNETTE KING: No, the Minister of Finance has not sought my advice, any more than that member has sought my advice on some of the things that his members are doing in their electorates now. I think the best thing to do, for every member, whether a Minister or a member of Parliament, is go to where he or she can get proper advice, and it is certainly not from me.”
… nothing would surprise!
Well, I seem to have missed all the excitement this evening! A bit to catch up on.
Burt: I must say you did seem to have it nailed first time around but it appears that greater legal minds than your’s have had the final say.
I am happy to be wrong in the good company of the Electoral Commission Burt. I have read the ruling in full, and learned a lot from it, the legal definition of “a person” turns out to be very complex. I was aware that this was the case in law in America (if you haven’t seen the film “The Corporation” then I highly recommend it), but it was interesting to see the relevant legislation in NZ explained.
The ruling as it stands is just that the EPMU must be considered as “a person” in the context of the EFA 13 (2) (f). That’s it, no more. It says nothing about whether the EPMU can register as a third party, that is again a matter for the EC. To me it seems likely that the EC will conclude that the EPMU cannot register as it is involved in the administration of the Labour Party.
Then we will be in a very interesting situation. Everyone (even Hooton!) seems to agree that the EPMU should be allowed to register and spend on political advertising (as it has in the past), but a complex legal opinion will mean that it cannot. So it seems to me that there will be considerable consensus to amend the bill to reflect its proper intent. It will be very interesting if the National Party oppose this – their anti-free speech agenda will then be very nakedly revealed.
And a final comment on one of the myths going round this thread — many people have said a version of it but this one is Burt: “Labour have squarely shot themselves in the foot trying to tilt the playing field in their favour, sadly that’s the state of it in a nutshell.” This is claiming that Labour tried to write a biased law and failed. This is silly, if Labour were trying to write a biased law it would have been easy – “unions can advertise and no one else can”. Done. What actually happened was that Labour tried to write a fair law in a very complex and contentious domain. In trying to write a fair law they have been caught out on a technicality. But anyone taking cheap shots about how the drafters of the law were incompetent or stupid should actually read the judges ruling and consider the complexities of the issues involved. This stuff isn’t easy to get right, but it’s important that we do.
“What actually happened was that Labour tried to write a fair law in a very complex and contentious domain.”
And failed.
After 9 years of being in power.
But it was probably a full moon, right? Or it was the previous National government’s fault?
Take your choice r0b, because either would be something we’d expect from the Labour party.
This whole thing is hilarious.
One of Labours clear objectives was to silence cashed up opponents of their government. How much abuse has that religous group recieved from the Left over the past 3 years.
So they construct a shoddy piece of legislation to silence this critic. They are told the legislation is shoddy. They ram it through anyway.
Then they are found to breach this legislation and their political opponents use this shoddy legislation to silence Labour supporters.
This is comical and shows how completley incompetent this goverment has become. They have shot themselves in the foot and are wondering why their support is disintergrating.
What National has done may or may not be right. What is clear though is Labour has no one else to blame but themselves.
We can always trust Dean to raise the level of the debate eh.
And failed.
They didn’t fail to write a fair law Dean, they failed to write a technically perfect law. Anyone who thinks this stuff is easy needs to explain how the Electoral Commission also got it “wrong” in their interpretation.
After 9 years of being in power.
What does that have to do with anything?
But it was probably a full moon, right? Or it was the previous National government’s fault?
It’s the “fault” of the people who drafted the law Dean, but the “fault” is small. This stuff is complicated – again, the Electoral Commission also got it “wrong” in their interpretation. Go and read the ruling for yourself, you might learn something.
rOb
You yourself probably called National’s opposition to the EFA as it was first proposed, amended, committee’d, amended and passed under urgency an attack on free speech. Please explain to all people, not just National party supporters, how the hell any of us can have any confidence in the intentions of Labour after all of this. Politically I’d say they are in self destruct mode, look at the shambles – draft a contentious law, get caught, have an MP caught, completely f##kup the status quo on their pretty little parallel campaign strategy with the EPMU.
The EFA was touted as being about transparency, I cannot see how you could possibly allow the EPMU to register as long as Little sits in both camps. He has a simple choice if he wants to act in good faith and enforce the intent of the law rather than introduce another round of BS trying to polish the EFA turd.
The ruling may be technical, but how would you feel about John Key sitting on the board of 20 ‘associations’ all with $120K to spend. Without Little resigning (somewhere) and with amendments made for the ‘unions’ there would be no moral or ethical objection to John Key doing exactly that.
But hey amend away, I’d never tell Labour to stop digging on this one, I gave that several amendment cycles ago.
One of Labours clear objectives was to silence cashed up opponents of their government.
Ahh no, One of Labours clear objectives was to have balance and openness in the funding of electoral advertising.
How much abuse has that religous group recieved from the Left over the past 3 years.
Almost none? Far less than they dished out to the Greens, that’s for sure.
What National has done may or may not be right. What is clear though is Labour has no one else to blame but themselves.
Well you got the first bit right. I even agree that Labour has no one to blame but themselves, but what they are “to blame” for is aiming to write fair legislation and failing to write perfect legislation. It is a much lesser sin than National’s trying to use the imperfect legislation to stifle free speech in a democracy. Shame on National, and those that support them in this action.
“We can always trust Dean to raise the level of the debate eh.”
We can always trust r0b to get defensive whenever Labour is called into question eh.
“They didn’t fail to write a fair law Dean, they failed to write a technically perfect law. Anyone who thinks this stuff is easy needs to explain how the Electoral Commission also got it “wrong’ in their interpretation.”
They failed to write a law after having 9 years practice at it.
I’d call that imcompetent, but maybe it was just rushed. I mean, come on r0b. Even Mallard doesn’t seem to have figured it out yet.
And if you don’t think 9 years of experience in passing laws is a good reason not to stuff things up so badly then really there’s no sense in talking to you about it.
If the same mistake had been made by a National government, you’d be baying for their blood. And you know it.
“It’s the “fault’ of the people who drafted the law Dean, but the “fault’ is small. This stuff is complicated – again, the Electoral Commission also got it “wrong’ in their interpretation. Go and read the ruling for yourself, you might learn something.”
I thought Annette King said “common sense” would prevail?
Is that not the case? Was she wrong?
Or was there a full moon?
Remember, r0b. She was the minister in charge of this farce, those were her words, and you’re a member of the same political party. I’m sorry if the shoe is uncomfortable, but you have chosen to wear it.
You Tories will never understand, you have your big money by unfair means, so we need our unions and workers. This case is so unfair and that’s why Labour needs to change the law to exempt unions from it, thats what they wanted when the law was being considered and they should have got it. The Tories smashed the unions and the public service in the 1990′s and now they are doing it all over again with court cases.
“Almost none? Far less than they dished out to the Greens, that’s for sure.”
You sure are reading different newspapers and websites than I am. They’ve even been called “chinless scarf wearers” by the political party you’re a member of.
Let’s see you defend that one. Full moon notwithstanding, naturally.
‘Almost none? Far less than they dished out to the Greens, that’s for sure.’
You aren’t serious are you. The EB has been subjected to ridicule because they dared to oppose the Left. They made some administrative mistakes, that was their only fault. And as a result they have been abused in a way that if they were Jews or Muslims, Annette King and Trevor Mallard would have been hauled before the Human Rights Commission.
This issue and others like it could have been prevented if the parties supporting the bill had listended to and followed the recommendations of our Human Rights Commission. The HRC said in their September 9 submisison that the bill was ” inherently flawed” and should be withdrawn. Parliament ignored them.
They repeated that at the Select Committee hearing on October 18th. I was present when Rosslyn Noonan said: ” The Commision’s preference is, and remains, that the proposed legislation, the bill, is withdrawn and redrafted to take into account the very substanial and indepth submissions of the over 600 submitters to the Select Committee. If it is not withdrawn, and rewritten the Commision’s view is that it is essential that any chnages be subject to the widest possible scrutiny to ensure the credibility and legitimacy of whatever electoral law reform emerges”.
So the HRC wanted the bill withdrawn and for parliament to start again. Failing that, they wanted the bill to be subject to a second round of public consultation. Parliament ignored the Human Rights Commission on this too.
A trade union should need to go to court in a democracy to fight for its right to be involved in the electoral preocess, but that sadly is what the EFA has given us.
The government should repeal the EFA before they are furthur embarassed. The law is uncertain and complex and will likely lead to a number of election results being contested in court after the election.
George Darroch: fuck off. As a $14.50 an hour minimum wage worker you are dead to me. You make huge accusations about Labour and the unions but as a union member I can tell you you don’t have a clue how either organisation works. You are the reason I don’t vote green.
John,
“This issue and others like it could have been prevented if the parties supporting the bill had listended to and followed the recommendations of our Human Rights Commission. The HRC said in their September 9 submisison that the bill was ‘ inherently flawed’ and should be withdrawn. Parliament ignored them.”
The HRC only matters to Labour when it suits them to matter. As you’ll see from r0b and company and their continuted protests that there is nothing to see here, and could we all move along quietly please.
You can’t talk sense to them. Only that issued by the Labour party matters. Except when it suits them otherwise.
You yourself probably called National’s opposition to the EFA as it was first proposed, amended, committee’d, amended and passed under urgency an attack on free speech.
No Burt, I called that a desperate defense of their ability and intention to buy the 2008 election with the same kind of dishonest tactics and big money backers that cost them the 2005 election and their previous leader, the late and unlamented Don Brash.
Please explain to all people, not just National party supporters, how the hell any of us can have any confidence in the intentions of Labour after all of this.
Because they clearly didn’t write a law that was biased towards them or they wouldn’t have been caught out on this technicality, they clearly set out to write a fair law, and that is something that we should all approve of.
Politically I’d say they are in self destruct mode
Good oh Burt, I shall afford your opinion on this matter all the weight that it deserves.
The ruling may be technical, but how would you feel about John Key sitting on the board of 20 ‘associations’ all with $120K to spend.
I would feel that was a pretty transparently foolish thing to do.
But hey amend away, I’d never tell Labour to stop digging on this one, I gave that several amendment cycles ago.
Make up your mind Burt – was the law rammed through without consultation, or were there several amendment cycles? When you run your “Labour Bad National Good” nonsense over here it’s best to pick just one line and stick with it…
My last sentence should have read : ” A trade union should not need to go to court in a democracy to fight for its right to be involved in the electoral process”. I ommitted the word “not” in error.
“The HRC only matters to Labour when it suits them to matter. As you’ll see from r0b and company and their continuted protests that there is nothing to see here, and could we all move along quietly please.
You can’t talk sense to them. Only that issued by the Labour party matters. Except when it suits them otherwise.”
Exactly. This is the funnest stuff I’ve ever read on this blog. Seriously. You’re still defending this daft law? My god. Like others said though, you only have yourself to blame.
Should have slowed down. Listened to the ammendments that other parties wanted. You allowed some, only those that didn’t impact on you in anyway.
Sorry, but you do have only yourself to blame. Wonder how Helen is sleeping these days?
JB: So you’d have preferred to have run the election in 2008 with those incredulous holes in the 1993 act that showed up in 2005?
That is what happens with new laws. They tend go in front of a court to iron out the rough edges. That is how the system works. Parliament writes the legislation, and the courts interpret it and balance against other law.
With all of the kurffle from the opponents of the act, that the law was only written to unbalance the playing field, both last year and this. The only major public problems have been on the left. Proportably who the act was written to bias towards.
Makes a bit of a mockery of the opponents claims doesn’t it really. Seems like it really doesn’t seem to have been so unfair after all.
Perhaps you’d care to enlighten us of the problems of the other sides with the EFA. Or more likely we’ll just get more of the Chicken Little universe – “the sky is falling” from the acts opponents. But then they do seem to be a trifle hysterical most of the time.
In the end, if there is an adverse decision, the EPMU can decide to allocate their money against the NZLP budget. Or they can remove themselves from any administrative positions in the NZLP and campaign on their own.
It is a bit of a pain – but new laws do a certain amount of that. Just getting a campaign period that is more based in reality is worth it on its own.
AG, do you actually believe the stuff you write?
“That is what happens with new laws. They tend go in front of a court to iron out the rough edges. That is how the system works. Parliament writes the legislation, and the courts interpret it and balance against other law.”
No, Labour tried to silence everyone else apart from unions. But… It going interpreted in a way Labour didn’t expect. Bugger eh.
So John, you’ve made something of a boutique lifestyle campaigning under the flag of “free speech”. I think that you are sailing under false colours. Convince me that I’m wrong – what do you make of National’s attack on free speech?
This issue and others like it could have been prevented if the parties supporting the bill had listended to and followed the recommendations of our Human Rights Commission. The HRC said in their September 9 submisison that the bill was ‘ inherently flawed’ and should be withdrawn. Parliament ignored them.
Parliament followed a full process of public consultation, public submissions to the select committee, modifications to the original draft, and so on. Could they have done more? In theory perhaps, in practice the timing constraints were extreme, see AG’s post above:
http://www.thestandard.org.nz/?p=1982#comment-45676
The government should repeal the EFA before they are furthur embarassed.
Heh – you wish. The EFA is doing it’s job, a level playing field. I can understand how that must upset you!
John Boscawen: what do you make of National arguing in the EPMU case that its attempts to silence the union do not impinge on the Bill of Rights while meanwhile you are taking a case to the High Court arguing that the EFA impinges on the Bill of Rights?
How can you trumpet the National case but go against it entirely in your own?