Analogous defences

DPF, in full spin mode, likens Labour's defence of its use of Parliamentary Services funds for its pledge card to a defendant who stands up in court and says

Yes your Honour, I did kill Miss Muggins. However I also killed someone in 1999 and 2002 so it would be unfair to hold me accountable now, because I thought it was okay. Plus the law was confusing and in my own mind I did nothing wrong.

Unfortunately, it's the wrong analogy. The correct analogy is someone who stands up in court and says

Yes, your Honour, I did do it - but it wasn't an offence at the time.

Section 26 (1) of the New Zealand Bill of Rights Act states that

No one shall be liable to conviction of any offence on account of any act or omission which did not constitute an offence by such person under the law of New Zealand at the time it occurred.

While they're not facing conviction for the supposed misuse of Parliamentary funds, the same principle applies. Labour's pledge card did not violate the rules for use of Parliamentary funding as widely understood and implemented at the time. It did not explicitly solicit for votes. It did not explicitly solicit for funds. It did not explicitly solicit for members. It was released around election time, in such a way that any reasonable person would conclude that it was in fact doing exactly those things (to the extent that the Chief Electoral Officer believed it should be counted as an election expense) - but the rules governing Parliamentary advertising only forbid explicit solicitations. And for good reason: everything politicians do is aimed at soliciting votes, so barring implicit solicitations would in effect bar everything - including National Party flyers like this)

If National thinks the rules should be different, then it is free to try and change them. But they should not be trying to rewrite them retrospectively so as to punish people after the fact. That is manifestly unjust and unfair - but then, since when has National ever cared about justice or fairness?

(Note that I am not trying to let Labour off the hook in any way for their election overspending. As I note above, the conclusion that the pledge card appeared to encourage or persuade voters to vote for Labour (thus falling under s221 (1) (b) of the Electoral Act 1993) is perfectly reasonable. But I don't see any inherent incompatibility which automatically rules out something which falls within the Parliamentary spending rules from being an election advertisement. Labour clearly thought there was (what other reason could they have for disputing that it was attributable expenditure?) - but there's no exemption in the law that I can see).