Saturday, March 18, 2006

The laws mean nothing

What is the point of having electoral spending laws if they are not enforced?

That is the question we should all be asking in the wake of the police's decision not to prosecute Labour (or any other political party) for overspending and other violations of the Electoral Act. We have such laws for the very good reason of preventing the rich from buying elections. But the police's decision in this case sends a clear signal that they can buy all the elections they want - and get away with it. That is dangerous in a democracy, and not what our political system is supposed to be about.

The decision is particularly troubling in the case of the Labour Party. There, the police concluded that there was

sufficient evidence to establish a prima facie case in respect of an offence under s221 of the Electoral Act. Section 221 prohibits advertising promoting a party unless the secretary of the party gives written authorisation.

Given the nature of this offence, a prima facie case is a conclusive one. It rests on a judgement that the advertising must be authorised - which means that clearly, if it was not authorised, an offence has been committed. Labour would have challenged that judgement in every possible venue, and it would likely have turned into a messy and expensive legal argument before the Court of Appeal or even the Supreme Court - but that should not have dissuaded the police from bringing the prosecution in the first place. Ditto their decision not to prosecute for Labour's egregious overspending, where the police concluded there was "insufficient evidence". They filed a return saying they had spent more than they were entitled to - how much clearer can it be? Again, Labour would have argued over what did and did not count as election spending, and the case would have rested on those questions of law, rather than the facts - but it is the police's job to enforce the law as it is currently interpreted, and they should not have shied away from this case. Public confidence in the electoral system is at stake, and maintaining it would have more than justified the expense, no matter what the ultimate outcome.

I am similarly disappointed with their refusal to prosecute National for its convenient "mistake" of not including GST in their election broadcasting spending. While they couldn't attribute responsibility to any particular individual (GST being one of those things that apparantly no-one is responsible for), the could always have prosecuted the party for it. Corporations are legal persons, this one had a clear duty to comply with the law, and it equally clearly failed to do so. The party couldn't have been thrown in jail, but a fine would have been useful in deterring similar convenient "mistakes" in the future.

The police's failure to prosecute clear offences has shown that our electoral laws mean nothing. The onus is now on the politicians to fix this problem and make sure similar abuses do not happen in the future. And if they fail to do this, we should hold them accountable for it at the ballot box.


I'll preface this comment with an observation that I believe the Police should certainly have charged National with breaching the Broadcasting Act, however I believe you have misunderstood the Police rationale for not charging them.

The Police opted not to charge National, not because they couldn't sheet blame to an individual, but because they sya they didn't have a prima facie case against either the National Party or their media buying organisation.

I.E. they don't know/have insufficient evidence whether National told their media agency we have $900,000 + GST to spend, or whether National told their media agency we have $900,000 incl. GST to spend and the media agency just spent $900,000 + GST even though they were told not to.

Posted by Graeme Edgeler : 3/18/2006 12:06:00 PM

Regardless of the reason the party has benefited in an election via a breach in the rules (no matter who's fault it is) and the burden of proof should be on them to show they did everything they could. conidering the magnitude of the public's interest at stake in these sorts of things they should be force to prove it.
Labour ofcorse is many times worse though.

Posted by Genius : 3/18/2006 10:01:00 PM

Maybe it should.

But that's not how our legal system works.

I think I read something along the lines of "innocent until proven guilty" somewhere during my five years at Law School.

Is Labour's really worse 'though? Labour faced a fine of up to $3000 or $4000, National a fine of up to $100,000.

This does highlight a few areas of the law that need change - the fine for a corrupt practice should increase markedly; and the rules should be changed (somehow, I'm not entirely sure how) so that what National did is not illegal (I'll reiterate that it currently is, and believe they should have been charged).

Labour received from the taxpayer and spent $1.1 million on broadcast advertising. National spent $1 million on broadcast advertising and broke the law, gaining an allegedly unfair electoral advantage.

Posted by Graeme Edgeler : 3/20/2006 10:15:00 AM