21 October 2008

"Pledgegate 08": a reply to Matthew Hooton

> policy.net.nz: "Pledgegate 08: Dean Knight misses the point" > LAWS179: "'Pledgegate 08': a storm in a pamphlet?" > policy.net.nz: "Pledgegate 08: Labour stealing from taxpayer again Matthew Hooton's thinks I've missed the point on the purported "Pledgegate 08" and has posted an explanation of why I think I'm wrong to focus on the legality of the spending/publicity. I've responded in a comment to his post, but have reproduced that response below.
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MH: Thanks for a robust response. A few thoughts in reply: 1. You think I've missed the point by focusing on the legality or otherwise of the publicity material. (I presume your absence of discussion of those aspects, you agree with the analysis of whether it is lawful or not.) But that's really my point. In your original post you make rather bold statements about "[mis-]use of public funds", "theft", "stealing from the taxpayer". They're legal terms that are founded on illegality. Hence my analysis of the legal position. What prompted me to analyse things in those terms is my concern that you were – either directly or implicitly – making an erroneous claim about the legality of that spending/publicity. My analysis demonstrates you were wrong on that point. 2. I am – and I'm sure other are too – happy to engage with a discussion of about the merits or morality of the use of public funds in this way. But personally I think it's better done without the use of loaded terms such as "theft", "corruption" and "rort". And you might also recognise that reasonable people can differ on such issues. On the one hand, you say the practice undermines the democratic imperative because it privileges incumbent parties (at least in terms of parliamentary services, both main political parties received significant amounts for party and member support – I believe for 2008/2009, the National party receives $6.9M, about $1.5M more than the Labour party, although that will exclude ministerial funding). On the other hand, some might argue that the very essence of representation is the ability to engage in dialogue with one's representative and to hold them responsible for their performance. That is, as was argued during the last pledge card saga, "parliamentary purposes" are indivisible from "electioneering purposes". Matthew, in this light, can I reframe your rhetorical question: Is *anything* an MP does ultimately not about winning votes? 3. I know you and others are convinced that the EFA is a conspiracy and a grave breach of the Bill of Rights. Again, I genuinely believe that this is a question on which reasonable people can differ and there is a credible argument that the EFA process is a good example of rights-deliberation and protection. See my post: http://www.laws179.co.nz/2008/07/electoral-finance-act-and-clo-advice.html 4. As an aside, no-one claimed the Auditor-General signed off on the pledge card; rather it was claimed the card was consistent with previous practice approved (explicitly or tacitly) by Parliamentary Services. What they took issue with was the Auditor-General's claim he had "warned" against the practice in one of his earlier report. Having read the reports, I incline to accept the point that if any warning was given, it was pretty oblique. In relation to Bryce's comments, the Auditor-General does not have their own "rules" about public spending; it's their job to interpret the rules that have been promulgated by Parliament and, in this case, as coloured by delegated authority. That's the essence of the Controller role: to ensure that "expenses and capital expenditure of government departments and officers of Parliament have been incurred for purposes that are lawful and within the scope, amount, and period of the appropriation or other authority". It's not a case of different rules being in conflict, it's a difference of opinion about how the rules are to be interpreted. That takes us back to and reinforces my original point. Central to this question is the question of the interpretation of the rules and whether the spending is lawful or not. I hoped my analysis might add that missing perspective.

1 comment:

Anonymous said...

Dean - I think your responses and MH's reply only serve to reinforce that this election and much of the puiblic education of NZers is no longer about legal or "right" per se. Such is the work of spin, and selection by the MSM that everything is how it looks. And "how it looks" is often determined by well-paid PR staff rather than 'experts".

I see the same moral outrage leading this as led the so-called "anti-smacking" debate ( a word I loosely attribute to that process)

It no longer matters what the "truth" is but what people believe it to be. That MH sees that as some kind of victory or vindication of National is somewhat unsettling but not surprising.

This is the same man who sat back and watched, or worse the EB running roughshod over Democracy three eyars ago and now seeks to lead the morally affronted. Sadly, he has many followers. Was the media outbreak prompted from his prodding, or is it the chicken and egg argument?

I certainly appreciate your contribution to the "debate"


Course Outline

Lord Justice Lawton in Maxwell v Department of Trade and Industry [1974] 2 All ER 122 said:

"From time to time ... lawyers and judges have tried to define what constitutes fairness. Like defining an elephant, it is not easy to do, although fairness in practice has the elephantine quality of being easy to recognise. As a result of these efforts a word in common usage has acquired the trappings of legalism: 'acting fairly' has become 'acting in accordance with the rules of natural justice', and on occasion has been dressed up with Latin tags. This phrase in my opinion serves no useful purpose and in recent years it has encouraged lawyers to try to put those who hold inquiries into legal straitjackets.... For the purposes of my judgment I intend to ask myself this simple question: did the [decision-maker] act fairly towards the plaintiff?"

This course examines the elephantine concept of fairness in the law, along with other contemporary legal issues.

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