Wednesday, June 14, 2006

Not impressed

Yesterday, National asked for the House to grant leave to introduce its Broadcasting (2005 Election Broadcasting Reimbursement) Amendment Bill, which would have allowed them to effectively pay broadcasters the unpaid GST on its electoral advertising. However, New Zealand First, the Greens, and the Maori Party all objected, meaning the bill will have to go into the ballot.

I'm not impressed. While I don't like National getting off the hook like this, I don't like the broadcasters being left out of pocket either (currently, they have no way to enforce payment, as paying the outstanding money would be illegal). And the parties' proposed "solutions" - that National simply pay up and take its lumps, or that the overspending be deducted from their allocation next election - aren't. The former simply is not going to happen - no-one is going to stand up for a $100,000 fine when they don't have to - and the latter, if not generalised so as to include Labour's overspending as well, is practically a Bill of Attainder (if generalised, of course, Labour would fight it tooth and nail). Given the realities of the political situation, the best that can be done is to extract the money from National, pay the broadcasters, and then make sure that it can't happen again by reforming the Electoral Act.


And if generalised, is effectively retrospective criminal legislation - when National/Labour broke the law and were investigated by the police they faced potential fine(s) of up to $100,000/$4,000 (and prison for 1 yr). Neither National nor Labour faced the prospect of having their spending limits altered at the next election for their misdeeds, and to make them face that prospect now is unlawful.

Personally I do think the idea seems sensible - the punishment fits the crime - but that doesn't make its retrospective effect any less repugnant.

I hadn't realised this before, so I should probably extend the same courtesy to the Green Party (and hope they reconsider), but the idea that they are not merely supporting, but actively promoting retrospective criminal legislation takes them down in my estimations a fair whack.

And even if the Green Party or UFNZ think that National should have their allocation dropped next time the appropriate action is to conditionally support the bill to select committee and try to get it amended.

Posted by Graeme Edgeler : 6/14/2006 02:14:00 PM

If National do not pay, then the broadcasters can, and should, take court action under Insolvency rules; the Party could be liquidated if it is unable to pay it's creditors.

I don't really see the problem here. National should pay their debts, and the Courts should decided their complicity in breaching Electoral Law. If it was an honest and simple mistake, then the Courts should assign an appropriate sentence.

National should not be able to legislate themselves out of liability.

Posted by Anonymous : 6/14/2006 02:38:00 PM

actually, that last post was by me: I wasn't meaning to hide behind anonymity!

Posted by Anonymous : 6/14/2006 02:39:00 PM

buzzandhum - I think a large number of people think National should have been charged (and Labour too), but the police decided not to pursue charges for election law breaches against anyone other than TVNZ (broadcasting an advertisement during a party's opening speech, I think). It's now too late (there's a six month time limit) and if National were to pay their debts it wouldn't be a simple and honest mistake, but a deliberate breach of the Broadcasting Act.

As for insolvency, I had thought of that, and it would be pretty funny to see them attempt it, but I believe it would fail.

Insolvency proceedings could be brought, but National would be able to defend them, because they do not legally have any debts with the broadcasters.

A contract to do something illegal (say a contract to have someone beaten up, or to buy a slave, or to broadcast an illegal election advertisement) is an illegal contract under the Illegal Contracts Act, and is unenforceable.

If so, then National doesn't owe any broadcasters any money, and any insolvency action will fail.

As the situation currently stands, National cannot pay the broadcasters any money and does not (in law) owe them any money - you suggest that National shouldn't be able to legislate themselves out of liability - and you're absolutely right, they shouldn't be allowed. Of course, what they're trying to do is legislate themselves into liability - if the bill doesn't pass National will be $100k+ richer than if it does.

Posted by Graeme Edgeler : 6/14/2006 03:05:00 PM


LOL... Please tell me that you don't give people legal or financial advice for a living. That kind of tendentious logic is bad enough coming from Winston Peters, who merely holds a Ministerial warrant.

Posted by Craig Ranapia : 6/14/2006 03:47:00 PM

Graeme's reasoning sounds reasonable to my uninformed mind.

Anyhow, I also think the offense was in the commissioning rather than the paying for of the ads - so it's already been committed. SO if they want to pay they are free to.

But part of the issue is that strictly the electoral commission is official payer for all the TV advertising. So what happened is that National has made the commission liable for something it can't and shouldn't pay for. I think.

The bill does sort that one out.

Looked at from these angles, I'm not sure the bill makes anything uncriminal or is all the retrospective - it just provides a mechanism for the payback.

That sounds wrong, but it might be true. No?

Of course I haven't looked back at any of the relevant materials in writing this.

Posted by Lyndon : 6/14/2006 04:15:00 PM

"Anyhow, I also think the offense was in the commissioning rather than the paying for of the ads - so it's already been committed. SO if they want to pay they are free to."

Lyndon, certainly the commissioning of the ads was illegal, but it appears that the paying would be illegal too.

Now, like you, I can't work out how this is so by reading the Broadcasting Act, but National have got lawyers who've been looking at this, and more importantly the Electoral Commission has told them and stated publically that it would be illegal for them to pay these bills. I suspect that if National could have paid the broadcasters directly it would have.

You're right that the bill doesn't make what National did at the last election legal, and it isn't retrospective (if you were getting mixed up by my first comment, that was directed to the Greens suggestion being retrospective, not National's bill).

Posted by Graeme Edgeler : 6/14/2006 07:16:00 PM

It's in National's interest to support a generalised deduction from next election's budget. If they don't, then Labour could pass a National-specific deduction, which is obviously worse for National than a mutual deduction. It's in the interests of all the smaller parties to cut the advertising budgets for both or either of the big two.

The retrospectivity isn't such a big deal when applied to organisations rather than individuals.

Posted by Commie Mutant Traitor : 6/15/2006 09:31:00 AM