Stand back: democracy is MPs' business, not yours
Colin James's NZ Herald column for 27 November 2007
The Greens put their finger on the deepest flaw in the Electoral Finance Bill: that the poachers are playing gamekeepers. The MPs think they own your elections.
Next year the Prime Minister, assuming the Queen's prerogative, will play cat and mouse with the date of your election.
She did once express interest in a fixed term for Parliament, as in, for example, Germany and New South Wales, two systems ours resembles. New Australian Prime Minister Kevin Rudd also favours a fixed term. But she tied it to extending the present three-year maximum to four years, which New South Wales has (and Rudd wants) but which voters here have decisively rejected twice in the past 40 years.
In the debate on the Electoral Finance Bill every MP claims to be protecting the public interest in a free and fair democracy. Actually, almost all are protecting their patches.
That includes small parties, which often pretend to be above partisanship. Remember that small parties, including the Greens, opposed you deciding MMP's future when it was reviewed after the 1999 election.
Most MPs don't like referendums. They think it interferes with their role as your representatives. Once you have delegated your authority to them at an election, you may make submissions (connoting "submissive") but not decisions. Their reason: only they can understand the complex world we live in and make laws accordingly.
These wise people wrote into the original draft of the Electoral Finance Bill a clause so bizarre that one wonders if someone from Suva or Harare (or Saturn) drafted it. It labelled as an election advertisement "any form of words or graphics" you produced which could "reasonably be regarded as ... taking a position on a proposition with which 1 or more parties or 1 or more candidates is associated".
How such a neutron bomb clause got past the cabinet's legislation and policy committees beggars imagination. The price for the government has been a public drubbing.
The strife over the bill reinforces the verity of the old adage that hard cases make bad law, or, as the Prime Minister misstated it in relation to the "terrorism" raids, single cases make bad law.
The "case" that triggered the bill was the National party's connivance in 2005 with the Exclusive Brethren who made clandestine attacks on the Labour and Green parties.
Those parties were outraged -- and outrage was justified. Free speech needs to be open speech. The National-Brethren shenanigans debased free speech. It also debased religion by transgressing the ten commandments but that is another story.
There was bound to be a response. In fact, a response was required. It is time you knew better who is paying which piper in your elections.
But instead of a democratic scalpel the government wielded an autocratic jackhammer.
The bizarre clause has gone. But the preceding one, dealing with material that "can reasonably be regarded as ... encouraging or persuading voters to vote or not to vote for a type of party or a type of candidate ... whether or not the name of a party or ... candidate is stated", remains. That seems to catch many websites and much else. And a new clause drastically widens the meaning of "publish".
The Electoral Commission says there is much in this blunderbuss of a bill that will invite messy litigation.
The Minister of Justice, steeped in the legal learning of the dental clinic, says the "law of commonsense" will apply.
There is, of course, no such law. Commonsense and legality are not easy bedfellows. Had the Crown solicitor run a commonsense check on its advice to the police on the terrorism raids, the police wouldn't have got into their pickle. Had the Crown Law Office run the same check on its opinion to the Auditor-General in 2005, the anomalies in his grandstanding on election spending could have been avoided and a measured process developed to stop the rorts.
And were the minister's jerry-built jurisprudence to be applied to the new law, it would offend the Attorney-General. It would invite judges to stand back from the letter of the law as legislated and be "active" or "creative" -- or at least "generously interpretative" -- when dealing with cases that arise from the legislation.
In fact, judges sometimes do just that when the law is muddled. But that is what the Attorney-General inveighed against when he was smarting from the Appeal Court's 2003 foreshore/seabed judgment. Forked tongues, too, make bad law.
The government is promising amendments, one substantive and many technical. National, out to recover its money advantage, is promising repeal when it next leads a government.
But wouldn't it be better that you, not self-interested MPs, decide? Hearken to the Greens. They said election finance should go to a randomly selected citizen's assembly, as done in some other countries.
Other options include a royal commission or a beefed-up Electoral Commission. Any would be more a proper custodian of the law of elections than dogfighting MPs.