- Date published:
11:43 am, September 14th, 2012 - 53 comments
Categories: accountability, democratic participation, electoral commission, Ethics, john banks, john key, local body elections, police - Tags:
John Key is wrong, John Banks has broken the law. He just did not get prosecuted. The return of donations he signed and submitted in 2010 is false, as the Police have stated. He should now correct it, or he is still in breach of the law.
The Local Electoral Act (Section 110) requires that returns of expenses and donations are to be kept and available for public inspection for a period of seven years from the date of the election. Section 109(2) states that the return “must be in the form prescribed by Schedule 2 or to similar effect.” Schedule 2 states:
[Here set out the name and description of every person or body of persons from whom or which any donation (whether of money or of the equivalent of money or of goods or services or of a combination of those things) of a sum or value of more than $1,000 (such amount being inclusive of any goods and services tax and of a series of donations made by or on behalf of any one person that aggregate more than $1,000 (inclusive of any goods and services tax)) was received by the candidate or by any other person on the candidate’s behalf for use by or on behalf of the candidate in the campaign for his or her election. The amount of each donation received is to be set out separately. If a donation of a sum of more than $1,000 was received from an anonymous person, the amount of the donation must be stated and the fact that the person who made the donation is anonymous must also be stated.]
We now know from the files released by the Police that John Banks directly and personally sought donations from Kim Dotcom and from another person, as yet unknown. He was also handed a donation by the Chief Executive of SkyCity in the SkyCity office, who stated it was made clear to John Banks that the donation was not to be regarded as anonymous.
The return that is now to be kept “in the electoral officer’s office, or at some other convenient place to be appointed by the chief executive of the local authority,…for a period of 7 years after the date of the election to which it relates, and during that period the return must be open to inspection by any person” is false.
The reasons that the return is kept available for inspection are obvious; precisely to guard against the sort of devious behaviour demonstrated by Banks. The return should and must be corrected to protect the record.
Section 133 of the Local Electoral Act states as follows:
(1) Every candidate commits an offence who fails to transmit a return of electoral expenses in the prescribed form to the electoral officer within the prescribed period.
(2) Every person who commits an offence against subsection (1) is liable on summary conviction to a fine not exceeding $1,000 and, if he or she has been elected, to a further fine not exceeding $400 for every day on which he or she continues to act until the return is transmitted.
John Banks’ return does not comply with the prescribed form. He is therefore in breach of Section 133.
Section 109 (4) states regarding the return of election expenses that it is “the duty of every electoral officer to ensure that this section is complied with.” Section 138 further elaborates this duty:
If the electoral officer at any election or poll—
(a) receives a written complaint that an offence under this Part has been committed; or
(b) believes for any other reason that an offence under this Part may have been committed,—
the electoral officer must report that matter to the Police together with the results of any enquiries made by the electoral officer that he or she considers appropriate.
(2) Subsection (1) does not prevent any person from reporting an alleged offence to the Police.
(3) Despite subsection (1), an electoral officer is not required to report the failure by a candidate at an election to file the return required by section 109(1) within the period prescribed in section 109, if the candidate files that return promptly after being required by the electoral officer to file the return.
So the proper course of action would seem to be for the Auckland City electoral officer to require 2010 mayoral candidate John Banks to promptly file a correct return in the form prescribed. That is what would happen in a general election. I was required by the Electoral Commission to file amended returns on a number of occasions where I had made mistakes, and in one case I can remember I had breached the law. Correcting the return repairs the breach.
The onus to correct the return in this case is squarely on the candidate John Banks; failure to comply constitutes the offence. In case of failure the electoral officer must, and any other person can, report the matter to the Police.
I presume any Auckland elector or candidate would be able to take this matter up with the electoral officer in Auckland. It would appear still to be an employee of Independent Electoral Services, PO Box 5135, Wellesley Streeet, Auckland 1141, phone (09) 573 1212 and email firstname.lastname@example.org; which one I do not know.
John Banks 2010 mayoral campaign expenses report in the prescribed form may be two years late; but at least it will be five years correct.