Logos, slogans and the Electoral Finance Act

The decision that the slogan on Rodney Hide’s yellow jacket was deemed in breach of the Electoral Finance Act is the first decision involving a party logo. Yet it wasn’t a decision on a party logo per se. The decision does not say that jacket was in breach of the Electoral Finance Act, nor does it specifically say that the logo in itself is in breach. But a logo with a slogan in Rodney Hides jacket was in breach of the Act. Indeed as Homepaddock has been advised there has not been a decision on a party logo.
Yet.

This has implications in forthcoming decisions – such as a party logo on a balloon and a party logo on a T-shirt. Once it is acknowledged that a party logo is an advertisement, the implications are immense.Are party logos different to slogans such as “Time for a change” and “the guts to do what’s right”.

Sounds like it. We’ll have to wait and see. Perhaps that's why a decision on Hides jacket was released before a decision on Labour's balloon even though the balloon complaint was with the commission earlier.What appears certain is that items of clothing were not in breach of the Electoral Finance Act.That means a balloon wouldn't be either. It is the advertisement that is the breach.

In these cases the Electoral Commission considers the legality of election advertisements – not what that advertisements are displayed on.

I love my yellow jacket, and I wear it all the time

Rodney Hide was pissed off with Andy Moore when he referred Hide's yellow jacket with the ACT logo to the Electoral Commission to see if it breached the Electoral Finance Act. The Electoral Commission decided that it the jacket breached the Act as the logo on the jacket didnt display a promoter statement. So Hide put a promoter statement inside his jacket and the Electoral Commission decided that this statement was not sufficient to satisfy the requirements of the Electoral Finance Act because it wasn't visible. The Commission referred the matter to the police because it considered there was public interest in doing so.

The Commission considered that the logo on Hide's jacket contravened sections 63(2)(a) and 65(1)(b) of the Electoral Finance Act by failure to display a promoter statement, and contravention of 65(1)(a) by failure to obtain written authorisation from the party financial agent, amounting to offences under sections 63(4) and 65(4) of the Act.

But S68 (1) of the EFA says that no payment must be made to any elector on the account of the exhibition of any election advertisement. Hide bought the jacket for $1100 as an election advertisement according to the Electoral Commission, (meaning that he brought it to provide something to tack an ACT slogan onto) and according to S68(2), this means both Hide and possibly the person who made Hide the jacket could be guilty of an illegal practice due to the payment made.

Oops. The Electoral Commission missed that one. It is the jacket that is in breach, not the logo on that jacket.

Where I think the Commission has erred is that in its decision it says that Hide's jacket also breaches the Act because the promoter statement was not visible. That wasn't the reason the statement breached the Act. According to 63(2)(a) and 65(1)(b) of the Act, the sections deemed a breach, the promoter statement does not have to be visible, just "contained". And the statement was later "contained" on the jacket. Given that the decision stated that the commission hadn't even viewed the promoter statement, how can it then officially deem it a breach of this section? The statement actually breached the EFA because it did not have Nick Kearneys address. The statement read authorised by Nick Kearney ... as required by Helen.

So if the police agree with the commission, and prosecute, it will mean that Rodney Hide, in wearing his jacket in a public place, is committing an act that is more criminal than parental smacking of a child. The Children's Commissioner would be horrified.

correction: To be precise, according to the Electoral Commission, the jacket is not in breach, just the graphics - even though the jacket was bought with the express purpose of using it to promote the graphics and logo. Makes you wonder how the Electoral Commission will adjudicate on this election advertisement as, like a balloon, the logo is part and parcel of it, not added on at a later date as was Hides.

Greens are hypocrites..again

Apparently the Green Party supports electoral reform in the hands of politicians only if they are the politicians having a disproportionate amount of influence.

The Greens supported the Electoral Finance Act only with the promise of a wide ranging review of electoral reform, driven by a citizens jury. That's not going to happen now. Instead of the Greens withdrawing support for the EFA, it is moaning that the panel has been disbanded.

The Greens supported partisan, self serving law making. If a citizens jury is appointed again, and National does not consult with other parties, the Greens will be the first to complain. But they didn't complain when Labour appointed the experts to that panel without consultation, because they thought they`d get more money from state funding of political parties.

Goff - lets review the EFA

New Labour leader Phil Goff has decided that the Electoral Finance Act needs a review now that Labour didn't win the election. I wonder what his new deputy Annette "common sense" King thinks of that, given that it was she who rammed it through.

It needed a review the day it was passed.

Goff said he'd like to see a system where democracy works but does not rely simply on the power of the dollar.

Easy, concentrate on democracy, not the dollar. Make democracy work and the rest will follow.

Labour breached the Electoral Finance Act again, today

Thousands get e-mails with a link to the "two Johns" video

Labour breached the Electoral Finance Act again today by sending unsolicited emails to many thousands of in boxes this evening. The email had a link to a Labour Party website which has the "two Johns" advertisement that was censured by the Advertising Standards Authority and removed from YouTube.

The e-mail, which had a false residential address of Mike Smith as its authorisation statement, was sent through the Smile City database.This database is a a rewards loyalty programme where subscribers give SmileCity express permission to send email offers, for which reward points can be earned. Its privacy policy says that information provided is only used by SmileCity to send appropriate reward mail and surveys.

But if you click on the designated button after you've read the Clark letter, you earn five points. You also end up at the Labour08 website that is also authorised by Mike Smith - except he now lives somewhere else. There are other links to the Labour site as well including this one which has the "two johns" video.

So not only has Labour encouraged Smile City to arrange letters asking subscribers to vote Labour and visit its website, its breached its own Electoral Finance Act as well due to the advertisement's false residential address. It is also arguable that the e-mail was not appropriate reward mail, and if that's so it is unsolicited, despite the ability to earn points, and Labour has encouraged SmileCity to breach its own privacy provisions as well.

I have a copy of the email and can send it to anyone on request.

It's not the Electoral Finance Act this time

Keeping Stock has noticed that the Dominion Post has reported on an Access Radio station too scared to run foul of the law and run interviews with local candidates. He says it is the fault of the Electoral Finance Act.

He's wrong.

It's the electoral rules in the Broadcasting Act that is the problem - which the article makes quite clear.

It's important not to think this is one of these Electoral Finance Act issues - it's not. The Broadcasting Act's got a definition of what an election programme is. That hasn't changed.

I was made aware of this case earlier in the week and spoke with the person who leaked this story to the media. The problem is part 6 of the Broadcasting Act, specifically the definition of “election programme” in section 69,, and section 70. Under section 80, it is an offence not to comply with section 70. These sections were part of the reason why the Electoral Commission reported Shane Jones to the Police, except he breached the Electoral Finance Act as well.

So blaming the Electoral Finance Act for Access Radios failure to broadcast these interviews is rather ignorant when it clearly has nothing to do with it. Actually there is nothing prohibiting the broadcasting of these interviews in a current affairs programme provided it does not come across as an election programme.

It appears that the Access Radio station manager has been spooked by the advice of the Electoral Commission and does not want to run the risk. Yet there is absolutely no reason why he cannot run opening and closing statements from each candidate in a balanced way - he just point blank refuses to do it.

Family First director's home targeted thanks to Electoral Finance Act

.......BREAKING NEWS.......
Update, Wednesday this story has gone international. Remember, you read it here, first.

During the weekend, four women dressed in black went to the home of Family First director Bob McCoskrie and stuck around 1000 knives in the front lawn of his section and taped an intimidating note on the front door of his house relating to the knives. He was away for the weekend.

This is what happens when you are politically active and you have to give a street address when promoting a political view. So therefore, because of the Value your vote website, it is easy to see where McCoskrie lives. The police have taken away the note and are testing for fingerprints. McCoskrie's neighbours helped remove the offending items and are now wondering what sort of friends he has.
update here

Electoral Finance Act has "chilling effect" on democratic participation in political activity

Well, I finally got the notes of a speech given by Electoral Commission chief Helena Catt at yesterday's $900 per person Nexis Lexus electoral finance law forum . Catt said the Electoral Finance Act has a "chilling effect" on the extent and type of participation in political and campaign activity - and it hasn't helped that "the meanings of significant sections of the legislation are obscure".

Catt said that a lot of early complaints of illegal activity originated from political factions within the blogosphere, and related to interpretation of the election advertising exemption for expression of personal political views online.

She also appeared frustrated that the Commission can't make timely decisions on this shonky law.

We have been unable to be as fast or definitive in our actions or guidance as would be desirable. We are also (and have been), rightly, open to challenge. The commission is not confident that it will be able to reach informed positions on the interpretation of some provisions within the election period,and notes that the situation is exacerbated by the legal reality that it cannot finally determine questions of whether, for instance, an item is an election advertisement

.A lack of broad political consensus through the passage of the bill and since has resulted in difficult law delivered into a litigious environment, Catt said. All this means that the Chief Executive of the Electoral Commission has acknowledged that the Commission cannot satisfactorily implement the law it is entrusted with implementing. It cannot promise consistent, timely and accurate application of the law , nor can it resolve basic interpretive questions - like what is the meaning of an election advertisement - because the Electoral Finance Act is such bad law.

And the Emissions Trading Scheme law looks like it will be worse. Just ask any Maori hapu or iwi who are aware of such issues.

More on that later.

Silencing political speech

I see the media and bloggers have finally got hold of the news that National is appealing the Electoral Commission's decision to register the EPMU. The Herald states that the EPMU was to be registered yesterday.

Good to see the Standard blog has wide coverage of the decision.

No Right Turn sees this whole thing as an indication that those with money and lawyers can effectively silence political speech, no matter what the law says. He says that is unacceptable in a democracy and I agree. But he gives no reason why he pretty much supported a law that let this happen.

The Electoral Finance Act is the real source of democratic unacceptablility, and its good that National is to repeal the Act.It's pretty hard to see how the EFA can be interpreted through the Bill of Rights Act when nobody seems to know how it actually complies with the BORA. I hope the case drags on and on to teach Labour and its cronies a lesson.

All four parties which supported the Electoral Finance Act have been found to have breached it, and three of them are being investigated by police.

Challenge to EPMU decision to register as Third Party

I have been advised that National is challenging the decision that the EPMU can register as a third party under the Electoral Finance Act. Again. It was supposed to have been listed today.

The Electoral Commission had decided to register the EPMU as a third party back in January, but was overturned by the High Court. Last week the Commission announced again that it would grant registration as it determined that the EPMU is not involved in the affairs of Labour.

Court papers challenging the decision were filed today.

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.

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.

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

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.

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.

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.

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.

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.