21 October 2008

"Pledgegate 08": a storm in a pamphlet?

> policy.net.nz: "Pledgegate 08: Labour stealing from taxpayer again Matthew Hooton has dug up a parliamentary funded "information kit" which provides information on services available to the over 60s in their area and from the government. As he note, the local Labour MP’s photo and contact details appear on the cover:

Referring to the previous pledge card findings arising from the 2005 election, he makes the following, rather bold, claim:

The Labour Party has learned nothing from the 2005 pledge card debacle when the public reacted with justified displeasure at its use (theft) of public funds for its election campaign. It appears it is doing the same in 2008 but on a larger scale.

He goes on to say:

It is impossible that in the context of an election being just 18 days away that the distribution of such an “information kit” cannot be considered to be blatant electioneering and, as such, the cost should be counted against the candidate’s $20,000 limit - although I am told that Labour plans not to do this.

Ok. I can see how someone might think it raises similarities with the pledge card, although of course that involved publicity that was rather more bold in its electioneering purpose.

But. There's an important difference that Hooton fails to appreciate that means his claims of "(mis)use of public funds" or "theft" are somewhat fallacious. The rules have changed.

The rules in 2005, in general terms, allowed the use of parliamentary funding for communications related to "parliamentary business" but excluded the use of such funds for "electioneering" (effectively defined as "communication for the purpose of supporting the election of any person or the casting of a party vote for any political party"). See the Speaker's Directions, Travel, Accommodation, Attendance, and Communications Services Available to Members of Parliament, 1 November 2003.

We know, there was the big investigation by the Auditor-General. He took the view, based on advice from the Solicitor-General, that for something to be counted as electioneering "[i]t was not necessary for there to be an express soliciting of votes"; as he put it, "the question is whether the advertisement as a whole would be likely to persuade a voter to vote in a particular way". And he also took the view that any electioneering purpose, however large or small, effectively tainted entire publication, that is, it was a simply "in or out" test.

Now, let's look at the present rules. The relevant Speaker's Directions are the Directions and Specifications for Services and Funding Entitlements for the House of Representatives, its Members, and Former Members, 18 October 2007 (promulgated by the Parliamentary Travel, Accommodation, Attendance, and Communications Services Determination 2007).

The main requirement is found in cl 5.15:

5.15 Requirements to be met for cost of publicity to be paid from Vote: Parliamentary Service (1) Publicity must— (a) have a parliamentary purpose; and (b) not contain electioneering; and (c) be identified at the time of communication as having been paid for by the Parliamentary Service; and (d) contain contact details of the member or party responsible for the publicity. (2) A list member must describe himself or herself as “List Member” in publicity where a place name or geographic area is used. (3) Publicity must not associate a list member with the name of an electorate. (4) Policies and procedures for ensuring compliance with the requirements of subclauses (1) to (3) are set out in the policies and procedures prescribed by the Speaker for publicity.

"Parliamentary purpose" is cast very widely in cl 2.4 and includes "a member of Parliament performing his or her role and functions as a member of Parliament". Most importantly though - and unlike 2005 - the definition of electioneering is expressly defined in cl 2.4 and is cast much more narrowly:

electioneering means any communication that explicitly— (a) seeks support for the election of a particular person or persons; or (b) seeks support for the casting of a party vote for a particular political party or political parties; or(c) encourages a person to become a member of a particular political party or political parties; or (d) solicits subscriptions or other financial support

There material injunction is the reference to "explicitly". It means it's not possible to simply try to connect the dots to the Auditor-General's previous report. A different regime applies with different standards.

Running the ruler over the "information pack" just quickly, it's a reasonable conclusion that the publication is entirely legitimate parliamentary spending: - it has a parliamentary purpose, namely communication with constituents about services available from government (cl 5.15(1)(a)); - it does not contain electioneering, that is, it does note explicitly seek support for the election of Hughes or the Labour party (cl 5.15(1)(b) - we can quibble about whether it implicitly does so, but that's not the test; - it is identified as being funded by Parliamentary Services, at least through the Parliamentary crest (cl 5.15(1)(c); - it contains the contact details of the member responsible for the publicity, namely Darren Hughes (cl 5.15(1)(d)).

And, of course, there's also the likelihood it has been subjected to the formal pre-publication scrutinisation process that now exists - I don't know either way, but would suspect that a prudent MP would have done so.

Hooton also raises the question of the attribution of the expenses to the candidate under the Electoral Finance Act. Those rules are a touch more complicated to work through. But, to make a long story short, the rules exclude from the definition of "candidate activity" and "candidate's electoral expenses" anything done in "his or her capacity as a member of Parliament". Although there might be some argument about this, that would seem to exclude this type of publicity.

UPDATE (21-10-2008):

A brief story, focused largely on the EFA implications, was run on this issue by the NZ Herald a few weeks ago:

> NZHerald: "Labour kit has National crying foul"


Anonymous said...

I follow your reasoning and interpretaion. Matthew,of course, knows and fuels the "being seen to be" part of our democracy. He knows the value of spin and it porbably (sadly) doesnt matter what the truth of its legality, he wants to paint it as dodgy by tying it to the pledgecard. I am thinking he is upset that only the Herald took it up and is trying to ge it re-entered into mainstream media?

Anonymous said...

Dean - thanks for the legal interpretation. I have responded with some more political points here: http://www.policy.net.nz/blog/2008/10/21/pledgegate-08-dean-knight-misses-the-point

Anonymous above is right that the strict legality isn't so important, just as it wasn't so important for the pledgecard or the Exclusive Brethren.

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

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

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