Monday, October 16, 2006

Putting it on the line

The government will introduce validating legislation next week to validate unlawful spending of Parliamentary Services funds on political advertising. And according to Michael Cullen on Agenda yesterday morning, it will be a confidence vote:

"It is an appropriation bill, therefore by definition it can be regarded as an issue of confidence and supply. It relates to the putting in order of the public accounts for 2004/5."

The gamble is that at this stage they are not sure whether NZ First will vote for it. I suspect they will - they certainly can't afford another election now, and I don't think they'll want to crawl into bed with the people who just cost them $150,000 - but its still a bit risky for Labour to do this without having the votes already in the bag.

Its interesting to note from the full interview that the legislation will also include a temporary return to the status quo ante, overturning the Auditor-General's nonsensical interpretation of the rules until the Parliamentary Services Commission can conduct a full review. This is vitally necessary if Parliament is to continue to do its job (because at the moment, MPs can't even issue a press release without engaging in "electioneering"). But I expect we'll see yet more hypocritical grandstanding from National all the same.


You say: "at the moment, MPs can't even issue a press release without engaging in 'electioneering'".

I think that's wrong. There is no election on the cards for two years so it is difficult to see that any press release could be 'electioneering' at the moment.

Posted by Anonymous : 10/16/2006 06:59:00 AM

"This is vitally necessary if Parliament is to continue to do its job"? Well, I think that deserves a hearty Penn-and-Teller chorus of "Bullshit", because I understand the House will sit tomorrow as usual, and select committee hearing will continue as scheduled.

Posted by Craig Ranapia : 10/16/2006 07:52:00 AM

From reading the comments of the likes of Mr. Ranapia here, it is difficult not to see a wider political agenda to cripple our democracy via hobbling its ability to fund itself. Yet another idea imported from the Repulican right?

Posted by Sanctuary : 10/16/2006 08:50:00 AM


I regard paranoia as a serious mental illness, and xenophobia a pathological blight that afflicts both the rabid right and the loony left of New Zealand politics. Comments like yours do little to change my view.

I snarked I/S for a bit of over-heated hyperbole, and I'll do the same for anyone who confuses the financial self-interest of politicians and political parties with 'democracy'.

Posted by Craig Ranapia : 10/16/2006 09:27:00 AM


With all due respect (i.e. none at all), I'll put any net-tiquite lecture from you in the same round file as marriage counselling and child-rearing advice from Britney Spears. Clean up your own act, hypocrite.

Posted by Craig Ranapia : 10/16/2006 10:05:00 AM


*sigh* You forget to suggest I get a haircut. Nice to see the fine traditions of rational left-wing argument are alive and well.

Posted by Craig Ranapia : 10/16/2006 10:07:00 AM

Nobody, anywhere, on any blog, nor anywhere in the MSM, has been able to say WHY this legislation is needed? What would happen if it were not passed this week? We seem to have a Chicken Little situation here. Could some lawyer tell us what would happen if it were not passed, so we could have a fact or two here.

Posted by Anonymous : 10/16/2006 10:13:00 AM

How did National cost NZ First $150,000? Are you saying Kevin Brady did what Don Brash told him? Or something else?

Moreover, I disagree that the Auditor-General's interpretation was nonsense. Adopting a definition of electioneering which is in line with the Electoral Act definition of the equivelant term seems eminently sensible. Now it is certainly possible to disagree with him, but the hyperbole you (and Jordan Carter, in a post which you can't comment on) engage in isn't helpful or nice.

The Auditor-General applied his interpretation of the rules to every party and found that the Progressives hadn't over-spent anything. Are you suggesting they didn't put out any press releases during the election period, or didn't fly anywhere, employed no staff etc.?

You can't be, because you would be wrong. If Jim Anderton and Matt Robson can operate as MPs, doing their work for the country without mis-spending Parliamentary funds then it's probably possible for everyone else as well.

Anon - if validating legislation isn't passed, the government's books will include illegal spending.

Posted by Graeme Edgeler : 10/16/2006 10:26:00 AM

Anon: "electioneering" is now defined as "intended to persade a voter to favour a candidate or party in an election". And clearly, this is not something that happens solely around election time. It is (as Rodney Hide pointed out quite some time ago) basically what MPs spend their entire time doing.

The Speaker points out some of the problems with this interpretation on pages 6 and 7 of her response, and they are real. To use a concrete example, last week Nandor Tanczos came to Palmerston North to address a public meeting about the pollution of the Manawatu River. Under the A-G's interpretation, the trip was electioneering, and any use of Parliamentary Resources (researchers, speechwriters, travel, admin staff) was an unlawful misappropriation. The same applies to Don Brash's numerous trips to Orewa. And of course to the National Party press office, whose numerous press releases on this issue are clearly intended to persuade people to vote for them at the next election.

If MP's can't actually say anything to the public except through Hansard or on their own dime, then I think the situation is nonsensical, and needs to be remedied ASAP.

Anon2: its needed because mere repayment doesn't erase the taint of unlawful spending. Public money was spent, and that requires appropriation by Parliament, EOFS.

Posted by Idiot/Savant : 10/16/2006 10:35:00 AM

Graeme: Is that it? There MUST be something more that is making Cullen so determined to deal with this issue this week.

Posted by Anonymous : 10/16/2006 10:37:00 AM

"its needed because mere repayment doesn't erase the taint of unlawful spending."

True, it doesn't, but why do we need or want to erase the taint?

If, as Michael Cullen and SPeaker Wilson do, one accepts the Auditor-General's conclusion, then surely they've earned more than just the taint of unlawful spending?


Posted by Anonymous : 10/16/2006 10:40:00 AM

Craig: Oh, it'll meet, but Parliament's job goes well beyond that. For example, we expect them to tell us what they're doing. That's now unlawful, at least to the extent that Parliamentary resources are used and the aim is to persuade us to vote for them (and when is it not?). We expect them to front up to the media; that's unlawful to if they have to travel or have a researcher prep their talking points. We expect them to highlight issues of concern to their supporters and attempt to sway public opinion on them. Sorry, that's "electioneering" now as well.

MPs spend their lives trying to persuade us to vote for them. That's part of The Game, and an essential part of how the system works. And that's why we need to fix it.

Graeme: you know as well as I do that the A-G only looked at a limited amount of spending - advertising - in a limited timeframe - the three month's before the last election. But the principle he's established applies outside that limited scope, and it has extremely perverse effects on our democratic institutions.

(As for blaming National, it is a truism that the other parties wouldn't be in this boat if National hadn't got on their high horse and waged a political campaign about it (which was of course pure "electioneering", but outside the limited scope of the A-G's report). And given the financial impact, I expect it to cause a certain amount of bad blood between the parties).

Posted by Idiot/Savant : 10/16/2006 10:41:00 AM

As a general note, people are usually quite pleased that the comments here do not sink to the level seen on other blogs. It would be nice if we could keep it that way.

Posted by Idiot/Savant : 10/16/2006 10:42:00 AM

WIll this legislation also validate the breach of the spending cap? If so that would be appalling.

More to the point, Labour continue to rely on the vote of Philip Field, a man accussed of bribery, corruption and witness tampering. A man who was caught red-handed lying to the inquiry into his own corruption. Helen Clark stood beside him, literally and metaphorically, when the Ingram report came out, and continues to use his vote.

If Labour rely on Philip Field's vote to pass this controversial legislation, it will be a black day for democracy. If they rely on his vote, they are as corrupt as he is.

Posted by Anonymous : 10/16/2006 10:47:00 AM

Labour is etching the political headstones of every minority party that supports Labour on confidence issues from this point forward.

The public should be very wary that Peter Dunne and Winston Peters are propping up this torrid, corrupt government, in order to continue to hog the baubles of ministerial office, and delaying their own political oblivion.

Posted by Insolent Prick : 10/16/2006 10:49:00 AM

Fair enough, but I note that by adopting the Electoral Act definition of election expense, many of the things that the Auditor-General is accused of making illegal will still be legal, because, for example MPs don't have to include flights in their electoral returns, or press releases written by parliamentary staff, etc.

The Auditor-General also notes that for advertising to fall within his definition it must have a direct bearing on the election (e.g. he specifically notes that constituency advertising that might include a photo, a party logo as well as a Parliamentary Crest, and even a slogan (such as 'working hard for you') is permissible.

Posted by Graeme Edgeler : 10/16/2006 10:54:00 AM

Craig, it may not be a plot, but constructively it will be the effective outcome if Brady's nonsensical decision is allowed to stand. I put it to you the right in New Zealand would not be unhappy if private money laundered throught secret trusts became the only source of funding for politicians. It is clear the right believes some voters are more equal than others and the political system should be gerrymandered in anyway possible to reflect this belief.

Ever since it dawned on the right that MMP would prevent them taking sole power they have sought a lese majeste solution to cripple it.

Posted by Sanctuary : 10/16/2006 11:10:00 AM

Naturally, the report addresses this (I knew I wasn't making it up), so I'll add this to the fray:

"4.41 A view held by three parliamentary parties and the Service was that my findings about advertising would essentially render inappropriate expenditure on a range of other services provided to parliamentary parties.


4.43 Clause 46(3)(d) of the Speaker’s Directions specifically prohibits electioneering advertising. It is clear that this prohibition does not apply to other activities undertaken by MPs."

Well, now that that's solved...

Posted by Graeme Edgeler : 10/16/2006 11:12:00 AM


Just as an FYI, assume I'm always speaking on my own behalf and in good faith, without some terrible hidden agenda lurking in the background. If the National Party wants to retain my services as a spinthing, we can get together and nut out a contract (and I'm a very expensive date) and the text of a disclosure statement.

Sorry if I got a bit scratchy, I/S, but I don't expect anyone to agree with me all the time. What the hell, I'm even flat out wrong on occasion. But my hackles go all the way up when I'm (in effect) called a liar prosecuting some secret agenda.

I/S wrote:
MPs spend their lives trying to persuade us to vote for them. That's part of The Game, and an essential part of how the system works.

Well, for better or for worse, you're probably right. But here's an opportunity for a rational discussion about why things have drifted so badly. Even a filthy right-winger like me will swallow hard, and acknowledge there's at least a case for the public picking up the tab for politicians flying around the country for photo ops of dubious public value. However, I would question whether next time out there's any public good in the taxpayer (for the sake of argument) flying Helen Clark and Don Brash to Auckland for the sole purpose of attending their respective campaign launches, or doing the election year party conference circuit.

Now, I'd like to see a rational and thoughtful debate that establishes a much firmer line between public business and party political business. Because I don't think you need to be too cynical to come to the conclusion the status quo ante is being screwed like to a tuppenny hooker. And that in my opinion, is the real threat to democracy: It encourages cynicism and apathy among citizens, and encourages a very dangerous mindset among politicians and parties where their financial self-interest is conflated with the public good. That's not only monstrously arrogant (after all, democracy in New Zealand existed long before any of the parties currently in existence) but rather creepy.

Posted by Craig Ranapia : 10/16/2006 12:07:00 PM

We haven't yet seen the nature of the validating legislation, so we don't know if it will eliminate the need to repay funds. It could do (Parliament can do anything, after all), but I think it's unlikely.

It is necessary to have some sort of legislation to cover this, though, or there will be some serious accounting problems. I saw in the Dom-Post this morning that Treasury thinks it needs to be dated back to 1989 and the introduction of the Public Finance Act. And please, let's not have any smearing of Treasury as being in Cullen's pocket; we all saw the briefing to the incoming Minister they gave him.

Posted by Anonymous : 10/16/2006 12:08:00 PM

Graeme: "Well, now that that's solved..."

Not so fast. You fail to cite paragraphs 4.44, 4.45 and 4.48 of the AG's report. They read: "The legal advice I received only addresses what might contitute electioneering in the context of advertising ... in a broad sense, the inquiry does pose questions about the appropriateness of other expenditure incurred by the Service ... I would expect the Service to establish a process for reviewing all other expenditure on support services for MPs. Such a process may includde seeking appropriate legal advice on the scope of the appropriations, and advice from my Office, to enable the Service to establish the nature of activitoes that can be funded within the scope of the appropriations it administers."

Presumably, all parties, including National, will be feeling the heat as the ramifications of this review become clear...

Posted by Anonymous : 10/16/2006 12:15:00 PM


If he intentionally doesn't apply them outside of that scope the implication is that they DONT apply outside that scope... "the exception proves the rule" as Cicero would say.

If he explicitly notes he did not consider a certain segment then that also makes a statement (although a weaker one).

I, of course, welcome a discussion to make the system clear so that even Heather Wilson can understand it. It is the aim (but not the requirement) of law to be such that it is understood by all so that it can be obeyed by all.

Posted by Genius : 10/16/2006 12:41:00 PM

Validating legislation is categorically not needed to validate any spending from 1989-2004.

As Leabour pointed out repeatedly, the Auditor-General has signed off on those accounts and found nothing untoward.

Validating legislation is required to make legal something that has been found illegal. There is no illegal expenditure from 1989-2004 to validate, it's all already legal.

Posted by Graeme Edgeler : 10/16/2006 12:55:00 PM

Treasury seems to be of the opinion that that spending was apparently approved in error, and needs to be legislatively covered. For surety's sake, if nothing else.

Posted by Anonymous : 10/16/2006 02:39:00 PM


Surely one of the things we've learned is that the approval of the AG and actual legality are conceptually distinct?

The long scope is not necessary from the point of view of the government accounts, but surely that's not the only consideration.

If a selection of spending is found to be illegal, surely that at least raises the probability that other substantially similar spending under substantially similar rules is illegal - hence going back to the start of the regime.

Posted by Lyndon : 10/16/2006 02:52:00 PM

You can take that a seriously as you would anybody who uses the word 'surely' twice in the same utterance

Posted by Lyndon : 10/16/2006 02:54:00 PM

According to one view, the spending might not actually be "unlawful". The Aud-Gen's report is simply one officer's view of its legality.

The House of Lord has said:
"Unless there is such challenge and, if there is, until it has been upheld by a judgment of the court, the validity of the statutory instrument and the legality of acts done pursuant to the law declared by it, are presumed."

Further, the father of administrative law, Professor Wade, has said:
"The truth of the matter is that the court will invalidate an order only if the right remedy is sought by the right person in the right proceedings and circumstances. The [decision] may be hypothetically a nullity, but the court may refuse to quash it … In any such case the ‘void’ order remains effective and is, in reality, valid."

That is, the spending is not unlawful unless and until it is declared to be so by the High Court (eg, in the Darton v Clark litigation).

Although I haven't had a chance to fully reflect on this point, I don't see the need for validating legislation if the parties are to pay back the expenditure - except to avoid a qualified audit certificate (which, of course, seems entirely appropriate if you accept the Aud-Gen's view).

Posted by Dean Knight : 10/16/2006 02:57:00 PM

Dean Knight wrote:
I don't see the need for validating legislation if the parties are to pay back the expenditure - except to avoid a qualified audit certificate (which, of course, seems entirely appropriate if you accept the Aud-Gen's view).

Well, correct me if I'm wrong, but didn't the Auditor-General do exactly that a couple of years back with the Minisry of Economic Development? If Parliament rammed through retrospective legislation under urgency every time the Auditor-General raised his eyebrow, I wonder how long it would be before all the clocks in Parliament were stopped permanently. :)

Posted by Craig Ranapia : 10/16/2006 05:21:00 PM

Kiwidonkey: "Labour continue to rely on the vote of Philip Field, a man accussed of bribery, corruption and witness tampering."

Meanwhile the National Party continue to have as a public spokesman an MP who has actually been convicted - not just accused - of worse than Field has been accused of. People in glass houses should not throw stones.

Posted by Anonymous : 10/16/2006 06:12:00 PM


I don't hold a flame for National. I just want Labour to expel Philip Field for being caught, red-handed, lying to the inquiry into his corruption.

Let me repeat that. There was an enquiry into his corruption. He was caught lying to it. Why is his vote still propping up the government? How can the Prime Minister tolerate support from this man?

Posted by Anonymous : 10/16/2006 07:18:00 PM

There's nothing the Prime Minister can do about Field, except dismiss him from his Ministerial warrants, which she did. There's no mechanism to kick him out of the House unless he resigns. I imagine there's probably quite a bit of behind-the-scenes pressure for him to do that.

They could throw him out of the party though, which would be a good idea on the grounds that he's a complete and utter tosser the Labour Party should be humiliated to have as a member. And that was before he became a crook.

Posted by Anonymous : 10/16/2006 09:03:00 PM

Anonymous above says: "Meanwhile the National Party continue to have as a public spokesman an MP who has actually been convicted - not just accused - of worse than Field has been accused of."

Who on earth are you talking about? "worse than Field has been accused of"??? I doubt it

Posted by Anonymous : 10/16/2006 10:06:00 PM

I suspect "anonymous above" is referring to National MP Nick Smith, who was found in contempt of court for placing pressure on a party/witness in a Family Court hearing.

It is not, however, correct to refer to that finding as a "conviction". Contempt of court, in the sense of which Dr Smith was found to have trangressed is not a conviction. Although he could have been sent to prison, there was no charge, and no crime, it was a civil matter.

Posted by Graeme Edgeler : 10/16/2006 10:57:00 PM

Thanks Graeme (2nd anon here). I thought anon1 may have meant Brownlee. But neither Smith's contempt nor Brownlee's assault are anywhere near as bad as what Field is accused of. I don't think any MP has ever been accused of anything as bad as what Field must now answer.

Posted by Anonymous : 10/17/2006 09:57:00 AM

Well, technically Smith's actions could have seen him in prison for life, while the allegations around Field could only see him get 7 years... But yeah the allegations around Field are of far worse behaviour.

Posted by Graeme Edgeler : 10/17/2006 10:34:00 AM