NZ POLITICS DAILY: NZ elections aren’t “rigged”, but questions remain

Although no leading politician is likely to claim, like Donald Trump, that “the election is rigged”, there are numerous problems with democracy and elections in New Zealand that need debating.

In New Zealand, political songs get banned, politicians easily reward themselves with new election advertising funding, donations to local government candidates are still somewhat opaque, taxpayer funds get misused by politicians, and new parties face big barriers to getting into Parliament. It sounds like an authoritarian country rather than a liberal democracy. So here are some of the questions we should be asking about the integrity of elections in New Zealand, based on recent news stories.

Question 1: Is freedom of speech in elections too quickly banned?

It might appear like the actions of an authoritarian state, but in 2014 the New Zealand Electoral Commission banned the song and video Planet Key during the election campaign. Since then, the Commission has had its ban ruled to be wrong, first by the High Court, and then again yesterday by the Court of Appeal – see Isaac Davison’s Planet Key should not have been banned, Court of Appeal says.

The Court of Appeal has explained that the Planet Key people were "simply expressing their own political views", and it agreed that banning the song imposed limits on the right to freedom of expression, and that such a ban would have "significant implications" for future elections. From the Electoral Commission’s point of view, there had been a lack of clarity about how political speech and election advertisements and programmes are defined in law. See also, Greg Presland’s Darren Watson 2 John Key 0.

For the ultimate examination of the issue, see Andrew Geddis’ must-read blog post: Politics ... coming soon to a screen near you. He sums up the ramifications of the judgement: “The Court of Appeal's decision on the Planet Key's legal status means that we are likely to see and hear a lot more political advertising. And it also renders the Government's just announced reforms of party political broadcasts completely out of date.”

Geddis explains what has happened in the judgement, saying the High Court has told “the Commission that it needs to lighten up and get a sense of humour. Or, rather, that it ought to approach its task in advising people whether a given message is an "election advertisement" under the Electoral Act (and thus subject to regulation) in a more nuanced and purposive fashion that pays greater attention to the rights of people to speak about their leaders and the policies that they pursue. And so the Court gave the Commission a set of guidelines to help it better make such judgments in the future.”

Geddis also complains that the Government could try to fix the mess in time for the next election, but this is now unlikely: “There's currently an Electoral Amendment Bill before the House, but as the Justice and Electoral Committee has allowed only 9 working days - 9 days!!! - for the public to make submissions on it, there's no way that such a major issue can be dealt with through this. So despite the Court of Appeal's warning, we'll have to wait until after 2017 to see what can be done about the problem.

Question 2: Do the political parties too easily re-write their state funding rules to benefit themselves?

This week, Andrea Vance reported on “a secret deal struck between political parties” that would see a major change to state-funded election advertising. Gone would be the election opening addresses from the parties, and instead the parties would get the funding to spend more freely how they prefer on advertising – see: Fancy getting rid of those boring election opening addresses?

The changes come out of a Justice and Electoral Select Committee review into the last election. But the details appear to have been worked out behind closed doors by a cartel of political parties. The new allocation formula will suit all the parties – but not necessarily voters – because the more informative, but perhaps boring, formal opening addresses will be monetised for the parties (an extra $750,000) and they will be able to use them on campaigning advertisements of their choosing.

In additional, parties will be able to spend the money on online advertising. But it gets a bit confusing, as it doesn’t seem that they will be able to spend on the money in other medium, such as print media. Richard Harman also points out today that “They may also spend some of their allocation on on-line advertising though (confusingly) they will also additionally be able to spend their own money on extra on-line advertising” – see: An end to boring TV election broadcasts. He also goes through some of the history of formal election campaign broadcasts.

Of interest, the new reforms do not make any changes to the way that the Electoral Commission divvies up the $3.6m to the parties. Most observers seem to agree that this election advertising funding system is broken and needs a largescale reform, but the Government is only offering tinkering. As the minor parties often complain, the funding allocation rules are biased against the smaller parties – rather than using fairness or equality as the guiding principle, the rules dictate that Labour and National should get the biggest voice in election spending.

The changes are, however, part of a larger suite of changes negotiated by the National Government behind the scenes with the Opposition. You can see a list of the other changes in David Farrar’s Electoral Act changes. Farrar comments: “All sensible stuff which will help. But a great pity they are not doing more significant reform such as removing the Police as the prosecuting authority for electoral offence.”

Question 3: How much will political parties misuse parliamentary funding for their 2017 election campaigns?

One area of political finance reform that the politicians never want to touch is the multi-million dollar parliamentary budgets of the parties. These are officially meant to fund parliamentary duties but, in reality, are often used for campaigning purposes. For example, in the most recent financial year, the “Party Member and Support” budgets for National totalled $51m, for Labour it was $35m, the Greens got $12m, and New Zealand First had a budget of $10m.

These amounts can all be found in the recently published Working to our strengths: Annual Report 2015 – 2016, Parliamentary Service. Incidentally, hidden away in the report are many further details of expenditure, such as the “Schedule of expenditure on travel entitlements of former members and their spouse or partner” – detailing expenses for travel entitlements of former members and their spouse or partner in the year to 30 June 2016. This amounts to about a $1m. Former MPs such as Kerry Burke spent $16,147, and Michael Bassett, $10,544. And their spouses also spent equally large amounts. For example Judith Bassett incurred $9,993, Joan Bolger $10,454, and Lady Jane Kidd $13,859.

But it’s the campaigning element of taxpayer parliamentary funding that is always more problematic. And questions have been asked about whether the Labour Party is rorting the system with its new campaigning office in Auckland, led by Matt McCarten.

Claire Trevett reports that Labour denies any wrongdoing: “Labour leader Andrew Little says his adviser Matt McCarten's taxpayer-funded salary is within the rules because McCarten will be doing "outreach" work for Little rather than campaign work. McCarten is leaving his job as Little's chief of staff to head a new Auckland office for Little as part of Little's election year strategy. That office was on a lease taken out by the Labour Party but Little's Parliamentary budget was paying for some of it at market rates under a sublease agreement. Staff would be a mix of party workers and those, including McCarten, whose salaries were paid out of Little's Parliamentary budget” – see: Andrew Little: nothing wrong with taxpayers footing the bill for his Auckland guru Matt McCarten.

The rules, designed by the politicians themselves, mean that mixing official parliamentary work with party work in the same offices is allowed. Taxpayer funded staff who carry out electioneering are also allowed to be paid by their political parties, which gives them the ability to justify any such campaigning work. So, for example, Stacey Kirk reports that this is “an arrangement the Prime Minister's chief of staff Wayne Eagleson works under” – see: Labour spin doctor not doing campaign work, rather 'public outreach' - Andrew Little. She also reports that McCarten’s new war room in Auckland, paid for by taxpayers, “is sub-leased from the Labour Party and Little confirmed party campaign work will be happening in a "different section of the office".

Question 4: How much will the National Government misuse ministerial funding for its election campaigning?

As well as funding from the Parliamentary Service, the National Party also has access to taxpayer-funded resources from Ministerial Services, which looks after all ministers. All sorts of travel and other expenses are funded. The latest release of official travel spending shows that such expenditure has been lower in the last few months – perhaps due to the election cycle, and the lack of by-elections – see Newstalk ZB’s Ministers more thrifty with travel expenses.

And for details of how ministers spend money on their overseas counterparts, see Vernon Small’s What do you buy for the world leader - and spouse - who has everything?

But there is no doubt that ministers exploit their resources to electioneer for their political parties. For example, back in June, Felix Marwick reported evidence of misuse: “Newly disclosed information on the use of the Government's VIP limousine fleet suggest the Government was involved in extensive use of taxpayer funded transport during last year's Northland by-election campaign. Ministerial cars are supposed to be used for ministerial purposes - election campaigning sits well outside that definition. GPS records, which also show the cars were breaking open road speed limits, reveal Crown cars were used in Northland on 25 separate occasions throughout February and March in the eight weeks leading up to the by-election.

On one occasion in early February, four separate Crown cars were being used in the electorate on the same day” – see: Govt's use of Crown cars during Northland by-election unethical.

In this article, Constitutional law expert Graeme Edgeler is quoted saying that the ministerial rules around such resources give the party in government an advantage over their opponents, and that this needs reform: "It is an incumbency advantage that is inherent in the system, and we should have rules which try to limit that."

Felix Marwick also comments that such rorts are within the rules but still wrong: “Is it legal? Technically it probably is. Is it ethical? Probably not. Particularly if your party has previously taken a stand against taxpayer funded election campaigns. Something the National Party has done” – see: Ministers used taxpayer-funded Crown cars during Northland by-election campaign.

Question 5: Are political parties exploiting the use of personal data gathering devices?

In order to carry out a modern election campaign, political parties need the maximum amount of information about individual voters, and ways to contact them directly. Hence we’re seeing all of them find ways to get voters to voluntarily hand over that information about themselves, perhaps even unwittingly. Lloyd Burr reports on a recent campaign that appears to do just that: “Labour has devised a cunning way to bolster the number of people on its party mailing list, under the guise of an online tool called 'find your baby number'. The party's not denying it either, with deputy leader Annette King saying there's "nothing wrong with it" – see: Is Labour tricking people into joining its mailing list?

Burr also says other parties are doing it at the moment: “Labour's not alone in its email farming tactics. National did the same earlier this year when it invited people to send John Key a happy birthday message. The only catch was that users had to use their email address, which added them to the party's mailing list.”

Question 6: It’s 20 years since MMP was introduced, but is it working properly?

New Zealand’s electoral system seems to be accepted by most as being a success, and there are a few reports at the moment evaluating MMP after its 20 years. The best of these is The Spinoff’s aggregation of various politicos’ views on it – see: ‘It was New Zealand’s Brexit’ – weighing up MMP on its 20th birthday.

In this, the various commentators also point to parts of the MMP system that are not serving elections and democracy well. The most common complaint seems to be around the five per cent threshold, which keeps small parties out of Parliament and prevents new parties from emerging.

For example, Richard Prebble argues that National wanted a high threshold, against advice, “for party political reasons.” Laila Harre gives her recommendation for improvement: “Eliminating the threshold or lowering it to 2% (the latest review cowered around 3-4% but couldn’t explain why even those heights were needed) and at the same time abolishing the coat-tails rule might help.”

Amongst other things, Andrew Geddis says “Cut the party vote threshold to at least 4% (and I’d go lower to 2.5%). Ben Thomas says: “The 5% threshold is generally agreed to be undemocratic and arbitrary.” And Graeme Edgeler: “I’d probably just get rid of the threshold altogether, but even if I can’t convince enough of you of that, it doesn’t need to be nearly as high as it is. Many arguments are advanced in favour of having a threshold, which could be met with a threshold no higher than 2.5%. Even then, a party would need to convince more than 60,000 people to vote for them to get into Parliament”

See also, the blogger No Right Turn’s Twenty years of MMP in which he also points to “the undemocratic 5% threshold, which unjustifiably excludes some of us from political representation while limiting political competition”.

Finally, you can now watch the un-banned video and song: Planet Key. Or if you’re after the original prime ministerial version, see the video: John Key Describes "Planet Key".

Today’s content

Elections rules and political finance

Andrew Geddis (Pundit): Politics ... coming soon to a screen near you

Greg Presland (The Standard): Darren Watson 2 John Key 0

Richard Harman (Politik): An end to boring TV election broadcasts

Isaac Davison (Herald): Planet Key should not have been banned, Court of Appeal says

RNZ: Ruling against Planet Key ban upheld

Newswire: Party election broadcasts a thing of the past

Vernon Small (Stuff):What do you buy for the world leader - and spouse - who has everything?

Newstalk ZB: Ministers more thrifty with travel expenses

Newswire: Bill allowing parties to do more online election advertising will 'engage more voters' - Amy Adams

Ele Ludemann (Homepaddock): Welcome changes to election broadcasting