"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"

The unfairness of FPP (or perhaps why MMP aint so bad after all)

Below are the results from Canada's latest federal election yesterday (from The Globe and Mail). I've added the percentage figures for the number of seats in red). Really, it speaks for itself. (Of course, as an aside, this is the third federal election in Canada in four years. So much more the (relative) greater certainty and longevity of government under FPP as compared with MMP...)

Hide and the kingmakers

> DomPost: "Hide: Unfair for Maori to be kingmakers" Rodney Hide complains that some of us might not be able to vote in electorates where the potential "kingmakers" are standing:

ACT Party leader Rodney Hide says it will be damaging to the New Zealand political system if the Maori Party finds itself in the role of kingmaker after the election. Mr Hide told Waatea News this morning he was opposed in principle to ethnically-based politically parties exercising undue influence on the political system. "If the Maori Party is in the position to play kingmaker (after the election), that could be very damaging for the Maori Party and MMP politics," he said. "People will think hang on, how come these people in these (seven) Maori seats where I cannot vote are getting to decide whether it is going to be Helen Clark or John Key who is going to be Prime Minister. "That does not seem on the face of it fair. "It is no disrespect to the Maori Party but I think that would be a hard one to explain." ...

Three words: Pot. Kettle. Black.

I presume he'll be recusing himself from forming a government, if the only reason his party is in Parliament is because he won the Epsom electorate seat? And, presumably he'll be similarly protesting Dunne or Anderton adding their electorate based seats to any coalition?

Pre-election period and the bank deposit plan

> NZHerald: "ANZ-National joins deposit plan, BNZ plans to" There's been some suggestion that Labour ought to have consulted the Nats and other parties before it made the announcement about deposit plans. I think those complaints are political, not constitutional. But, for what it's worth, below is the extract from the Cabinet Manual 2008 that captures the present conventions about decision-making during the pre-election period. Notably, the "caretake convention" per se does not apply:

Pre-election period 6.9 In the period immediately before a general election, the government is not bound by the caretaker convention unless the election has resulted from the government losing the confidence of the House. (See paragraphs 6.16 - 6.35 for information about the caretaker convention.) Successive governments, however, have chosen to restrict their actions to some extent at this time, in recognition of the fact that an election, and therefore potentially a change of government, is imminent. For example, significant appointments have been deferred, and some otherwise unexceptionable government advertising has been considered inappropriate during the election campaign, due to the heightened risk of perception that public funds are being used to finance publicity for party political purposes. (See the Guidelines for Government Advertising in appendix B for general guidance.) In practice, restraints have tended to be applied from about three months before the general election is due or from the announcement of the election (if the period between the announcement of the election and polling day is less than three months). 6.10 The Secretary of the Cabinet is available to provide advice on decision making during the pre-election period.

Zero Tolerance?

> NZHerald: "Brian Rudman: Tough talk won't solve jails issue " > ACT: "Law and Order Policy"

I see ACT has proposed "zero tolerance for crime" and will ensure "[t]he law ... be enforced at all levels and penalties awarded enforced".

Calls for "zero tolerance" demonstrate a profound lack of understanding about how our laws are structured and work. Our laws are drafted on the basis that public actors will apply discretion about when they are enforced, ie our laws contemplate prosecutorial discretion. We can always seek to improve the application of that discretion, but there's no doubt that its existence is essential.

To illustrate with a simple example that most people will be able to personally relate to.

The Land Transport (Road User) Rule 2004 contains the following rules:

rule 3.1 General requirements about places controlled by traffic control devices (1) Subject to subclauses (2) and (3), if traffic at any place is controlled by a traffic control device, a person (including a pedestrian) using the road at that place must comply with the instructions given by that traffic control device that apply to them. ... rule 3.5 Traffic signals in form of standing or walking human figure (1) While a special signal for pedestrians indicates a flashing or steady red standing human figure symbol, pedestrians, riders of mobility devices, and riders of wheeled recreational devices who are using the footpath and facing the signal must not enter the roadway. (2) While a special signal for pedestrians indicates a green walking human figure symbol, pedestrians, riders of mobility devices, and riders of wheeled recreational devices may,— (a) if facing the signal, enter the roadway to cross towards the signal; and (b) if a “Pedestrians May Cross Diagonally During Cross” sign is installed, enter the roadway to cross towards the signal or to the diagonally opposite corner of the controlled area.

The Rule also contains the following rules:

rule 11.3 Using crossings, underpasses, or footbridges (1) A pedestrian or rider of a mobility device must not cross a roadway otherwise than on a pedestrian crossing or at a school crossing point, at an underpass, or on a footbridge when a pedestrian crossing or school crossing point, an underpass, or a footbridge is reasonably available to the pedestrian for that purpose within a distance of 20 m. (2) If pedestrian traffic on any part of any roadway is controlled by traffic signals, a pedestrian must not cross any other part of that roadway that is within 20 m of the part controlled by traffic signals. (3) This clause is subject to clause 11.4. rule 11.4 Crossing roadway (1) A pedestrian or rider of a mobility device or wheeled recreational device who crosses a roadway elsewhere than on a pedestrian crossing or at a school crossing point must, whenever possible, cross at right angles to the kerb or side of the roadway. (2) This clause does not apply at an intersection controlled by traffic signals if the pedestrian or rider is complying with a notice, sign, or marking maintained by the road controlling authority and indicating that such persons may or should cross otherwise than at right angles.

Section 10 of the Land Transport Act 1998 requires people to comply with the rules:

s 10 Road users and others to comply with ordinary rules and emergency rules A person must comply with the rules.

It is a criminal offence to contravene a rule:

s 40 Contravention of ordinary rules (1) A person commits an offence if the person contravenes a provision of an ordinary rule and the contravention of that provision is for the time being prescribed as an offence by regulations made under section 167. (2) If a person is convicted of an offence referred to in subsection (1), the person is liable to the applicable penalty set out in the regulations.

The maximum penalty for breaching the rules are set out in s 3 and Schedule 1 of the Land Transport (Offences and Penalties) Regulations 1999:

reg 3 Summary offences and penalties (1) A breach of a provision specified in the first column of Schedule 1 is an offence against the Act. (2) A person who commits an offence referred to in subclause (1) is liable on summary conviction,— (a) in the case of an individual,— (i) to a fine not exceeding the amount specified in relation to that offence in the third column of Schedule1; or (ii) to a fine of the amount determined by the relevant scale set out in Schedule 1A (as referenced in the third column of Schedule 1). Schedule 1 ... Land Transport (Road User) Rule 2004 Provision; Brief description; Maximum penalty on summary conviction for individual ($) 3.5(1); Pedestrian, rider of mobility device, or rider of wheeled recreational device enters roadway when red human figure displayed; $10 11.3; Pedestrian/rider of mobility device fails to use pedestrian crossing, etc, within 20m; $35 11.4(1); Pedestrian/rider of mobility device/wheeled recreational device fails to cross road at right angle to roadway; $35

The effect of "zero tolerance" in the enforcement of crime is: - any person who dashes across the road at the lights on the corner of Willis Street and Lambton Quay while the red man (human figure) is showing must prosecuted and fined up $10 each and every time they do so. - any person who jay-walks on an angle across Lambton Quay must prosecuted and fined to $35 each and every time they do so; - any person who dashes across Lambton Quay beside, but not at, the lights across the road from Astoria must prosecuted and fined to $35 each and every time they do so.

Magic.