Wednesday, October 04, 2006

Cause for complaint

Don Brash has written to the Commissioner of Police complaining about their failure to prosecute Labour for their egregious overspending during last year's election. And he certainly has cause for complaint. Faced with a case of vital importance to our democracy, the police simply did not take it seriously, with one officer even complaining that the investigation was distracting him from "real crime" - like burglaries. This is a basic failure of the police to enforce the law, and it calls the competence of our police into question.

That said, there is little we can do about it now. Section 226 of the Electoral Act sets a six month time-limit on prosecutions, which has long-since expired. And given the clear constitutional provision against retrospective criminality, Labour cannot now be held to account for it (not under criminal law, anyway). All we can do at this stage is tighten the law to ensure that this does not happen again, by extending the time limit and putting prosecution and investigation of electoral crime in the hands of the Electoral Commission rather than the police. National has had more than ample opportunity to introduce a Member's Bill to fix these problems; the question is, why haven't they?


When somebody asks for a definition of 'chutzpah' apparently the story is sometimes told about the boy who killed both his parents and then ask the judge to be lenient as he had only recently become an orphan.

It's not that National's spending issue was a par with Labour's, and in the Nats case there's not direct evidence it wasn't an accident. But still, it's like he's daring them to come back at him. Much, come to think of it, like the 'corruption' thing. Chutzpah.

Or maybe he's just forgetful - he said he was cutting ties with the Brethren now since they hadn't broken any laws during the election. Given that he appears to have been instrumental in the EB's failed conspiracy to stay within the rules, I'd have thought he might have noticed.

I'll repeat my theory that the Nats are trying as many things as they can think of on the pledge card that are unlikely to actually succeed. That way the issue is not resolved, it stays in the public eye, and they get to mutter darkly about sinister forces when whatever tack it is they're trying fails.

All this is, of course not to imply any disagreement with what you say.

Posted by Lyndon : 10/04/2006 03:35:00 PM


While we're talking about 'chutzpah', perhaps we can talk about Annette King accusing Don Brash of taking New Zealand "down the road to a police state" while Labour and its proxies are blatantly attacking the competence - and even political independence - of the Auditor-General, who is merely an officer of Parliament.

And I do have to wonder why, if criticism of the Police is so verboten, this Government is talking about strengthening the Police COmplaints Authority rather than abolishing it altogether.

As I/S has quite correctly pointed out, it would be a relatively minor tweak to the Electoral Act to extend the time limit and putting prosecution and investigation of electoral crime in the hands of the Electoral Commission. Wonder why Labour isn't very keen on doing that?

Posted by Craig Ranapia : 10/04/2006 05:32:00 PM

Craig: to be fair, Labour has signalled that they will be reforming the Electoral Act, and I am expecting such changes to be in there (and if not, raising a stink about it). And I've just submitted an OIA request to find out exactly what they're planning.

What I'm wondering is why, given their vocal complaints about the problem, National havn't moved first. They have plenty of slots available for Member's Bills, and it wouldn't exactly be difficult to draft. The obvious conclusion is that they are more interested in shallow political posturing than in actually fixing the problem and ensuring the integrity of our electoral system.

Posted by Idiot/Savant : 10/04/2006 05:38:00 PM

I think this is a Brash/Sinclair solo effort designed to stave off the leadership challenge by helping him on to the front foot regardless of the merits of the issue.

Posted by backin15 : 10/04/2006 05:51:00 PM


I also think it's fair to note that (by my count) the Electoral Act has been ammended multiple times while Labour has occupied the Treasury benches - including the bill passed under extreme urgency to retrospectively save Harry Duynhoeven's arse, and coincidentally avoid a by-election.

This has never been an issue before, and pardon me if I think it's because it's just a little too convenient for all concerned. I think it would just be fair to spread the cynicisn around a bit - including to the Police Minister.

Posted by Craig Ranapia : 10/04/2006 06:11:00 PM

I wonder whether potentially (but probably not realistically) there is a solution to the expired time limit in the Electoral Act itself:

> LAWS179: Election expenses - prosecution under the Electoral Act

Posted by Dean Knight : 10/05/2006 09:24:00 AM

I/S - why should National "fix" the problem with the electoral laws. They managed to obey them. All they want is for Labour to obey them too.

Posted by Anonymous : 10/05/2006 12:10:00 PM

Craig/somebody who's about

Can you point me to instances of "blatantly attacking the competence - and even political independence - of the Auditor-General"?

I tend to miss some things.

I realise that fundamentally disagreeing with the basis of a draft report isn't the kind of thing that should be done in public. Actually I can see the parallel with what Brash is doing, except with the AG the process is ongoing. By the same token, Brash is trying to revisit a completed process.

But it's not the same as attacking him. And in the context of somebody making the draft public, and National crowing about it, silence is probably too much to ask.

Not politics as usual, but politics still, I'd have said.

Mind, I suppose Brash isn't actually attacking the police either. With regard to what King said, I feel like saying, "imagine if he was Prime Minister".

I think we've already established that I feel the parallel with what the actual PM is doing less strongly than you do.

Irrespective of the validity of his point, his decision to do this strikes me as a touch hypocritical and a touch alarming.

Posted by Lyndon : 10/05/2006 01:59:00 PM

And yeah, I agree - it's shamelessness all round.

Anyone want to start a pledgebank thing to move to Finland?

Posted by Lyndon : 10/05/2006 02:02:00 PM

Lyndon - on a live interview on the Close Up programme on Monday 18 September the PM accused the Auditor-General of "smearing" the Labour Party

[Quote: "On the pledge card, let me say for the record, the Auditor-General, Mr Brady, gave an unqualified audit certificate, total sign-off, to the same spending under the same relevant rules last election; and I ask what is fair, what is consistent, about him changing his mind and smearing the reputation of my party and other political parties."]

The interview is still on-line at:

Further I'd suggest that publically complaining about action the police have taken after that action has already been taken is less serious than publically attacking them (or someone in an analagous position) while an investigation is ongoing. Don Brash' complaint to the Commissioner cannot be seen as trying to place pressure on the police; Helen Clark's attacks on the Auditor-General can be seen as trying to influence him to change his position.

If Don Brash thinks someone within the police is incompetent then he ought to wait until any action he takes could not be seen as threatening or pressuring and then complain first to the officers' commanders and if unsatisfied then with the PCA.

If Helen Clark considers than the Auditor-General has smeared her and others' parties, she should raise the matter with the Speaker, or the Officers of Parliament select committee, and if their limited powers are insufficient to deal with the matters she should move a motion in the house to remove Brady from office.

As for imagining Brash as the PM, I tried to visualise Brash *answering* oral questions as PM the other day; gotta say, I couldn't see it...

Posted by Graeme Edgeler : 10/05/2006 03:11:00 PM

Lyndon - in addition, the Peter Dunne creep said that Brady's process was a "mess". That is a clear attack on his competence, especially when he is only followign normal natural justice procedures of asking for comments on his draft report before reaching final conclusions.

Posted by Anonymous : 10/05/2006 03:30:00 PM

Anon: in addition, the Peter Dunne creep said that Brady's process was a "mess"

That's because it is a mess. As Vernon Small pointed out a few weeks ago, the various rulings on what is and isn't allowed are fundamentally inconsistent with the previous hardline stance, and call that stance into question. And there is now a real danger of parties being pinged for material that has found found perfectly acceptable to other parties.

This sort of process should not be done retrospectively. If there is to be a change in the rules, it must be clear and public and known to all parties in advance. And despite the repeated claims from National, that really doesn't seem to be what has happened.

Posted by Idiot/Savant : 10/05/2006 06:05:00 PM

Idiot - I disagree that that is a mess. It sounds like natural justice to me. Would you prefer a process where the AG didn't change his mind as a result of submissions from parties? Would that be neater and tidier? And cut out the "rules being changed" stuff - that is Labour spin. He is not changing the rules; he is applying them to each invoice for the first time having had concerns arising from his overview audit after the 2002 election.

Posted by Anonymous : 10/05/2006 06:37:00 PM

Anon: I agree - it is natural justice in action. But what it shows is that the Solicitor-General's position - that all money spent within three months of an election should be regarded as "electioneering" - is more than a little problematic. And that position is new; it certainly was not what most of the parties - or Parliamentary Services, who approve the spending, even if informally - understood the rules to be.

While Labour's pledge cards smell like electioneering, you need something a little more objective than that. The long-understood rule has been that material cannot explicitly solicit for votes, members, or funds. That's a perfectly clear and unarguable criteria; unfortunately it seems that the Auditor-General would rather rely on his judgement and leave parties to second-guess him, rather than laying down clear rules.

Posted by Idiot/Savant : 10/05/2006 08:56:00 PM

I'm concerned about a principle that would allow laws to be defined in a very unnatural way by those people that the law applies to in order that they are not restricted by it.

For example lets say we passed a law against corruption because we believed that money should not be used to buy policy.

But some corrupt parties declared that corruption was understood to only include "those acts where there was a clear signed document (by both parties) titled 'corrupt deal'"
(Otherwise it gets really confusing!)

'Dr Evil' then doesn't even get charged or censured for "paying the primeminister to hand all his power to corporation X" because the signed deal didn't have the term "corrupt deal" at the top.

Posted by Genius : 10/05/2006 09:59:00 PM

"unfortunately it seems that the Auditor-General would rather rely on his judgement and leave parties to second-guess him, rather than laying down clear rules."

It is not the Auditor-General's job to lay down clear rules. It is his job to enforce rules laid down by others. One rule he is charged with enforcing is the proscription on electioneering with Parliamentary funds.

The long-standing interpretation cannot have been that electioneering means soliciting for "votes, members or funds" - how on Earth is soliciting for members electioneering?

The solicitor-general's recent observation is likewise not about the meaning of electioneering, rather an observation that something should be considered electioneering if one of it's purposes is electioneering. Neither a narrow nor broad interpretaion of the word electioneering is necessary for this conclusion.

It really just means (using the narrow definition) that something that says "Party Vote Green" would be prohibited even if 99% of the pamphlet on which it appeared was advertising constituency meetings...

Posted by Graeme Edgeler : 10/05/2006 10:05:00 PM

Graeme - Fair enough. Sounds like attacking to me.

Thanks. I guess.

Just to add a tuppen'orth re. the all spending within three months being electioneering thing...

Someone pointed out to me - three months out, the election hadn't been announced.

Posted by Lyndon : 10/06/2006 05:42:00 PM