Is a party logo an election advertisment?

Such a big issue. Under the Electoral Finance Act, is a political party logo an election advertisement. That is a question the Electoral Commission looked at at its meeting in May and June and will further consider at its next meeting on 27 July. Will it make a decision this time, or will it base its decision on the law of common sense?

The Electoral Finance Act defines an election advertisement as any form of words or graphics, or both, that can reasonably be regarded as encouraging or persuading voters to vote, or not to vote, for a party/ies or candidate/s.

So I rang Peter at the Commission to ask what was going on. He said he didn`t really know. He said he wasn`t the Electoral Commission and wouldn't tell me if the Law Commission had provided advice. It's a very sensitive issue. Crown Law has been offering advice on this but the Commission appears to be wanting to base its decision on any implications, rather than the law itself and would rather make a decision on this once the election is over to avoid such implications.

So, Dr Claire Robinson of Massey University has offered her advice in the the New Zealand Herald today

This is in fact a very simple issue. Without question, logos are election advertisements in terms of the definition contained in the Electoral Finance Act.

And half the Commission agree- the other half apparently won't agree because of the implications.As the Herald notes, once it is acknowledged that party logos are election advertisements, all stationery, cars, electorate offices, pens, backdrops at party conferences, and banners will need an authorising name and address.

Its not big money that is causing the headaches at the Electoral Commision, its a simple, silly unnecessary authorising statement that Labour wrote into this law.

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High Court allows Labour to break the Law

The National Party has failed to have the Electoral Commission refer a Labour party leaflet that breached the Electoral Finance Act to the police.

But the Police is investigating it anyway after a member of the public referred it to the police.

The High Court found that the Electoral Commission, not the High Court, had to determine a value judgment of what is "inconsequential" when referring an electoral matter to the police.

But it never does. Here's how things work: Parliament passes a law so that it can break the law on the basis of " inconsequentiality". The Electoral Commission does not want to decide what is inconsequential so refers everything to Crown Law for advice. Crown Law, in batting for the Government, errs on the side of caution every time - sometimes on the dubious grounds of "education".

This is not about law at all. This is about politics. As a result no one is the wiser on the Electoral Finance Act. It also gives the police an excuse not to prosecute if a member of the public refers further illegalities to the police while the Crown Law dictated Electoral Commission fails to do so.

So why even have the law in the first place?

There. Now I`ve said that, I may have to blog about this High Court decision as well. But I have to sit an exam so that`ll have to wait.

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Red faces at Crown Law

What on Earth is going on at Crown Law? The Crown Law office, headed by the Solicitor-General, is the official legal advisor to Ministers and to the public service. Short of getting a judgment from the courts, a Crown Law opinion has always been considered a weighty and influential document. But events this week have seen new questions being asked about the competence and impartiality of the Office.

The Electoral Finance Act now places firm restrictions on campaign expenditure by political parties for the whole of Election Year. It also requires third parties that intend to place more than $12,000 worth of election advertising to register their intentions and provide relevant details. After registration by the Electoral Commission, they may then spend up to $120,000 on election-related advertising. But the Act is clear that a person that is “involved in the administration of the affairs of a party” may not register as a third party. Otherwise it would be simple to rort the expenditure restrictions simply by registering, for example, the John Key for Prime Minister Society as a third party and spending $120,000 promoting the National Party cause. Then repeating the exercise as many times as the budget permits.

Last month, the nation’s largest union, the EPMU, applied to the Commission for registration. Yet the EPMU is affiliated to the Labour Party, and its Secretary Andrew Little sits on the Labour Executive. The Electoral Commission sought advice from Crown Law. And Crown Law advised that the restrictions in the EFA (S13(2)(f)(i)) did not apply to the union because the Act restricted “persons” and an organisation like the EPMU could not therefore fall within the definition.

The Commission, headed by former Justice McGeechan, followed the Crown Law advice, but, clearly apprehensive as to its quality, very sensibly left a period for legal challenges to play out before giving the EPMU registration. And this week the High Court very predictably overturned the Commission’s decision, and exposed the Crown Law advice for the shonky piece of work it was.

Now, there will be red faces over at Crown Law. Justice McKenzie’s “declaration” that the word “person” “has the meaning given to it by S29 of the Interpretation Act 1999” rather served to underline the fact that the legal definition of “person” was hardly in doubt from the outset. Quite how Crown Law had managed to come up with an interpretation that would have rendered the expenditure caps in the EFA totally meaningless boggles the mind.

But this is not the first time Crown Law has had difficulty with the EFA . Read the rest here

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MPs newsletters and emails caught by EFA

ACT MP Heather Roy has been advised by the Chief Electoral Office that her weekly newsletter, which a recipient has to sign up to recieve, is an election edvertisment, has to be authorised - and therefore counts as an election expense.

This would also apply to any other MPs newletters or emails, however if the MP e-mailed a link to a website, or put it on a blog without an authorising statement, that would not contravene the EFA.

To comply with the EFA, all MPs newsletters and some media releases sent to non-media personnel by e-mail containing information that can reasonably be regarded as encouraging or persuading voters to vote for or against any poltical party - and most media releases sent by email to non-media personnel - must contain authorising statements and count as an election expense.

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Parallel campaigning pretty much legal: No group to be prosecuted under the Electoral Finance Act

The Electoral Commission has decided to let the EPMU register as a Third Party under the Electoral Finance Act opening the door to parallel campaigning. It also means no group can be prosecuted under the Electoral Finance Act under section 111.

One of the objectives of the Act was to eliminate the extent of parallel campaigning.

The main objection was that the EPMU is ineligible to be listed as a Third Party because it is ‘a person involved in the administration of the affairs of a party’. The Electoral Commission made no comment whether the EPMU is involved in the affairs of the party – which it arguably is., but is outlawed in the Act, based on Crown Law advice.

That’s because the commission concluded that EPMU could not be such a “person”, because person means a natural person, not a legal person. So Andrew Little could not register as a Third Party because he is involved in the affairs of Labour but his union can. Bill English can’t, but if John Key and English form an unincorporated society it can. It also means that any group involved in a candidate’s campaign can register as a Third Party.

It also means that any group cannot not commit an offence under the EFA - under Section 111 it has to be nailed down to a person - such as the person who committed the offence - ( but will financial agents be deemed responsible?)So if a group of people in a body – say the EPMU - commit an offence, the Electoral Commission can’t refer the EPMU to the police, it has to either find the person/s involved, or some other individual to the police unless it believes the offence is inconsequential.


update it gets worse section 137 says

If an offense is committed against any of the provisions of this Act by the financial agent of a principal, the principal party is, without prejudice to the liability of the financial agent, liable under that provision in the same manner and to the same extent as if the principal had personally committed the
offense

In s137 a principal means a Third Party. Such Third Parties are liable for offenses. Third Parties are either liable for offences or they are not. In s111 they are not, in s137 they are. Isn’t that inconsistent – or is the Electoral Commission going to arbitarily determine that a Third party is no longer a liable principal due to the recent Crown Law advice?
IANAL.
UPDATE was emailed by a lawyer who knows about such things and he advised thatthe Crown Law advice only applies to that subsction of the Act being looked at. So "person" is not restricted to individuals in other sections of the EFA.

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Labours election advertisements do not count as election campaign expenses

Although Labour broke the law with its election leaflets by not putting proper authorisation on it, even if it had done so, the Electoral Finance Act allows parties to use taxpayer dollars to produce booklets like the one Labour produced and as long as it puts a party authorisation on it, it can be an election advertisement funded by the taxpayer, but doesn't count towards election campaign expenses.

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Labour breaches own law

The Electoral Commission met yesterday to discuss various matters. One of which was Labour's electioneering, another one was a balloon. Labour has been found to have breached the Electoral Finance Act but wont be prosecuted

Are you surprised? At the decision to prosecute, not the breach.

The Electoral Commission, in not referring the breach of the law to the police, is making this law toothless. So will there be consequences if a high spender doesnt register as a third party - like the EPMU, perhaps, who may not be allowed to.

Well, if the Electoral Commission is to use breaches of the law as examples "for the education of party secretaries and financial agents", who knows? The commission says that any similar breaches would be referred to the police, unless they were considered inconsequential to the public interest.

So that means one of two things: this breach is about as inconsequential as light smacking, or Labour is above the law.

One decision the Electoral Commission found tough was consideration of whether a balloon bearing a party logo and website address was an election advertisement. The Commission didn`t know - perhaps because the ballon was a red one. It is referring it to Crown Law. Can you believe it. I wonder if Crown Law will use Annette King's law of common sense?

The commission has already decided whether the EPMU can register as a third party but won't release the decision until next week after it is written up and the EPMU advised.

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PSA registers as a third party

The PSA has applied to register as a third party under the Electoral Finance Act - an act that means registered parties can spend more money campaigning for or against a political party.

Hang on.... isn't the PSA supposed to be politically neutral? The excuse to register is that the PSA is not supporting any political party, they just need to be allowed to promote political ideas. Labour's ideas, that is.

But they won't be promoting political ideas, they will be opposing National's political ideas with state-funded member levies, and if they were truly neutral there would be no need to register.

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