Electoral Commission

Graeme Edgeler is a frequent commenter on all sorts of election issues, and I have yet to find him to be wrong on anything. He has been kind enough to clarify some points following a post about National needing to look after Nick Smith or he could leave, force a by election, and a hung parliament.

As with all guests posts this is unedited. Those invited to write guest posts are assured that posts will be published in full, whether I agree with them or not. I might comment in a subsequent post, but I will leave this unedited.

When New Zealand adopted the mixed member proportional (MMP) voting system, Parliament had a bunch of choices to make about the detail.

One of the choices it made was that proportionality only mattered at the general election. This means that if an electorate MP from one party resigns (or dies, or otherwise leaves Parliament), and an MP from another party wins the resulting by-election, the overall proportionality of the House changes. Usually this won’t make much difference – the Government’s majority might be reduced from nine votes to eight – but if the House is close to evenly divided, it might make a difference.

This has happened under MMP already. When Labour electorate MP Tariana Turia resigned, Maori Party candidate Tariana Turia won the resulting
by-election, and the number of Labour MPs fell by one, and the number of Maori Party MPs grew by one. And the same principle applies if the replacement is a different person.

You might think that in the event a candidate from a different party from that which previously held the seat won a by-election, the party winning the by-election should lose a list MP, and the party which had the MP resign from it should gain a list MP, so that overall proportionality is maintained with the party vote at the preceding general election. There are good reasons why you might do this, especially if the proportionality of the party vote is considered particularly important.

But the simple point is that we don’t. If you look at Section 55 of the Electoral Act, you will see all the ways in which a seat can become vacant in Parliament. The seat of a list MP cannot become vacant because a candidate for their party won a by-election in a seat they didn’t previously hold. Look through the rest of act, and you simply will not find anything that says we ensure proportionality remains after a by-election is held.

There are also good reasons why we don’t do this. Sometimes it simply can’t work, for example, when a party not previously in Parliament wins the by-election (which the Maori Party and the Mana Party both achieved). And redoing the list seat allocation after a by-election could also completely muck around Parliament.

What would we have done if Winston Peters had won one of the by-elections held during the term of the last Parliament? The current rule we have is that he would
simply have become an MP, replacing the person who previously held the seat, but if we re-did the list allocation, then National would have lost three MPs, and the Greens and Labour one each, so that New Zealand First could have gotten five MPs. This could easily be very destabilising to Parliament. Of course, in a very close Parliament, like the one we currently have (where, for example, the government’s partial sale of various assets is being passed 61 votes to 60), not doing it can have the same effect.

There are any number of different ways we could treat by-elections. The way we do it is probably the easiest, but if people want to suggest alternatives, then they can propose them to the Electoral Commission’s review of MMP. It’s going to look at some of the other rules around by-elections, such as whether list MPs should be able to run in them, and there’s no reason for them not to look at this as well.

The Electoral Commission has referred The Radio Network to Police for Broadcasting Act breaches:

On 21 February 2012, the Electoral Commission referred The Radio Network to the Police for broadcasting election programmes for United Future on 25 October 2011. It is the Electoral Commission’s view that the broadcasts for United Future on 25 October constituted a breach of section 70 of the Broadcasting Act 1989 because broadcasters were prohibited from broadcasting election programmes for a political party outside of the election period for the 2011 General Election, which began on 26 October and ended on 25 November 2011.
As this matter is now with the Police, the Electoral Commission will not be commenting further.

I think this is one aspect of electoral and broadcasting law that is silly. Firstly that only political parties can broadcast and secondly that they are only allowed to within a proscribed period.

Then there is the unwillingness of Police to act or investigate electoral matters. If the Police don;t act then there is little point in having  these laws. Political parties,especially Labour already pretty much know this and conduct themselves outside of the rules on frequent occasions knowing that they will never be prosecuted or held accountable.

A guest post from Thakur Ranjit Singh on some comparisons between Fiji and New Zealand media environments. I agree on some aspects of the post but not on others, however it provides and interesting discussion post.

When watchdogs become lapdogs: Some New Zealand media in spotlight

With the fall of Murdoch Media Empire and Wikileaks Scandal, the concept of a free media has taken almost a fatal hit. With recent developments in mainstream television, controversies and questionable decisions by some media outlets in New Zealand, one is forced to revisit Propaganda Model.

Edward S. Herman and Noam Chomsky, in their book, originally published in 1988, Manufacturing Consent: The political economy of mass media (2008), have put forward a model as a framework for gauging, analysing and understanding the functioning of the US media. Their concept, called the Propaganda Model, stipulates that media is not a free agent that the public have been made to believe. They challenge the myth that the press is stubborn, difficult, persistent and present everywhere as searchers and defenders of the truth. What they state through Propaganda Model is that all facets of news are structured by the influence and consensus of the elite to ensure systematic propaganda. Effectively what they say is that the media serves and propagandises on behalf of those who control and finance them.

This is where the recent behaviour of Television New Zealand (TVNZ) and Media Works comes into question. Almost two months before the last elections, Prime Minister John Key hosted an hour-long show on September 30, 2011 on Radio Live. He declared that the show was an “election-free zone.”

However, the Opposition, complained to the Broadcasting Standards Authority (BSA) and the Electoral Commission claiming that the show qualified it as an election advertisement because it was so close to the November 26, 2011 election. The ruling of the Electoral Commission was that despite statements that the show was an “election-free zone”, Mr Key had associated himself with well-known people. In doing so, he took the opportunity to raise his personal profile unchallenged, and hence was likely to be seen to encourage people to vote for National Party under his leadership.

The then Labour leader Phil Goff accused Radio Live of granting special favours to John Key in exchange for Government’s decision to defer $43 million of licensing fees for Media Works, the owners of Radio Live and TV 3. He said it would have been a different situation if other leaders had been afforded the same opportunity. Goff said Radio Live had rejected the idea of allowing others to participate. The concentration of ownership of NZ media between Fairfax, Media Works and Government makes the picture murkier and give further credence to Propaganda Model.

In yet another media move that would raise concerns and controversy is a decision by TVNZ to dump the new Labour leader’s weekly appearance on its Breakfast show. They were courteous in telling Labour leader David Shearer that he was not newsworthy and he did not have an automatic right to appear on the show, and would have to create news to appear on its show. It is a typical chicken and egg situation- how is he expected to create news without TV exposure?

Coming on the heels of Labour’s complaint about PM’s free election advertising on Radio Live reported above, some feel it is the government-owned station’s act of getting back at Labour for being a naughty boy. Its axing may be due to the Electoral Commission finding Prime Minister’s appearance on Radio Live breached the Broadcasting Act and the case being referred to police. This fiasco, apart from illustrating the act of Government broadcaster licking the hand that feeds it (government), also raises questions about whether the media should treat party leaders differently in their coverage. However, according to Propaganda Model, TVNZ will look after the interests of its owner and financier – the government and the Opposition (Labour Party) can go and jump.

Such expedient decisions by the media in pleasing the government are not only confined within New Zealand, but have gone abroad as well. This comes amidst allegation from Fiji Broadcasting Commission (FBC) that NZ government was blocking the newly established FBC TV from showing TVNZ news and features to Fijians.

FBC’s chief executive, Riyaz Sayed-Khaiyum (former TVNZ’s Asia Downunder reporter) said that while TVNZ Pacific Services were free of service across the Pacific, Fiji was denied permission for showing such to its people. All that was needed was any broadcaster to be given approval from TVNZ. However, reportedly two requests made last year by FBC TV had been rejected by TVNZ on the grounds that FBC TV was owned by government of Fiji. What defies sense or logic is that TVNZ itself is a government owned enterprise. And because of it being NZ Government owned, Khaiyum claims political pressures were exerted on TVNZ by Murry McCully’s Foreign Affairs Department not to grant the Fijians the approval to broadcast. According to what Khaiyum told Fiji Sun, this was confirmed by New Zealand High Commission’s Deputy Head in Suva, Peter Lund that the directive of refusal came from New Zealand Foreign Affairs. Effectively, this was a case of a Government exerting its ownership powers to prevent dispersal of regional information in the Pacific region. TVNZ, as a supposedly free media organisation was merely dancing to the tunes of its owners and financiers- New Zealand government. Khaiyum said the decision may only change with the change of government.

However, your truly is not holding his breath for it- Labour party has been no different in its treatment of Fiji. Just the players change, the game rules remain the same. In the meantime, people are getting used to the high standards and quality of TV services from the English service of Al Jazeera from Doha in Qatar. It is similar to the case of another Arab enterprise, Emirates Airlines, increasingly taking foot in the traditional Australasian market.

The cases above illustrate that Herman and Chomsky’s Propaganda Model stipulated over two decades ago still holds current in New Zealand. In this developed First World, some media still continue to be sympathizer and mouthpiece of, and jump to the tunes of those who finance them. In doing so, they abandon their watchdog roles to become lapdogs.

Endnote: The author graduated with Masters in Communication Studies (MCS) with Honours from Auckland University of Technology (AUT) last year. His research topic was: The 2000 Speight coup in Fiji: an analysis of the role of The Fiji Times and the impact of partisan media. The research is available at the following site: http://aut.researchgateway.ac.nz/handle/10292/2554

The research revealed that Propaganda Model of media was also in play during 2000, leading to Speight coup in Fiji.

[About the author: Thakur Ranjit Singh is a media commentator, a community worker and CEO of Media Relations Limited, a media promotions, event management, public relations and communications company based in Auckland.]

As predicted the Herald’s Labour Fan-girl, Claire Trevett, has swallowed Grant Robertsons breathless “release” of documents posted 3 months ago on lap-blog The Standard.

Labour is going back to the Electoral Commission about John Key’s pre-election RadioLive show, saying the Prime Minister was more involved in it than he let on.

Labour’s deputy leader, Grant Robertson, yesterday released emails showing Mr Key had chosen and approached his own guests and his office had changed a “brief” about the show and provided the wording for RadioLive to request advice from the Electoral Commission about it.

In the emails Mr Key’s communications manager, Willy Trolove, also wrote that Electoral Commission advice had not given a definitive go-ahead for the show, but made it clear the responsibility was on the broadcaster, “which is useful”.

Mr Robertson said the emails showed Mr Key’s office was clearly nervous about a possible rule breach.

No…what the emails show is that Labour’s leaders office is still very closely linked to The Standard and they are now running stories seeded first on The Standard then feeding them to a pliable and believing media fan-club.

Mike Smith also ran a follow up post on the re-heat last night.

Is David Shearer prepared to deny the link between their lap-bloggers The Standard and the leader’s office categorically? Is chief of staff Stuart Nash?

Graeme Edgeler is very good at covering the legal angles in politics, even if he is somewhat long-winded. He does however cover pretty well without the hysteria all the angles concerning Radio Live’s referral to teh Police for breaching electoral law:

He provides an eight point examination of the issues.

For me the most concerning part now is the huge backlog of cases that the Police have and no apparent progress.

While all the fuss and bother was concentrating on MediaWorks it seems that TVNZ has also been referred to Police:

On 8 February 2012, the Electoral Commission referred the following matters to Police:

• TVNZ OneNews coverage before 7pm on 26 November 2011.  It is the Electoral Commission’s view that the broadcast breached section 197(1)(g)(i) of the Electoral Act 1993 because it included statements that were likely to influence any elector as to the party for whom the elector should or should not vote.

The Police are going to have to start explaining themselves soon with all the complaints that are mounting in their in tray.

Here’s a quick (but not all inclusive) list of complaints the police are(n’t) dealing with.  The complaint against Daljit Singh was lodged way back in Sept 2010

Labour candidate Daljit Singh referred in September 2010.

Labour referred in July 2011 for their illegal postcard.

Labour (Again), Act, and Charles Chauvel referred 16 August, 2011

Jim Anderton was referred on November 8 2011

Jolyon White was referred 18 November 2011

Three more referrals December 5, 2011

Maori Party and two others December 09, 2011

http://www.elections.org.nz/study/news/2011-media-releases/referrals-to-the-police-14122011.html

An illegal bus shelter ad was referred on 22 November 2011

NZ First’s Brendan Horan referred Dec 22 2011

Act on Campus referred February 2 2012

RadioLive referred February 9 2012

The good people at the Electoral Commission are doing their job, it appears the Police are letting our democracy down.

Last year when John Key’s DJ spot went to air Phil Goff made demands for the same consideration.

Labour’s Phil Goff says Radio Live refused a request to give other party leaders their own show.

His party has complained to the Broadcasting Standards Authority and the Electoral Commission about last week’s ‘Prime Minister’s hour’, when radio station bosses allowed John Key to host a programme.

Coming so close to the election, Labour believes it broke broadcasting and election laws, even though Key didn’t talk about politics.

Goff this morning confirmed his staff contacted Radio Live to voice concerns about fairness, and he denied rumours Key offered Goff the chance to appear on the show.

”We contacted Radio Live and we said that you can’t have, in this part of the electoral cycle, one party leader being given a programme where he has full editorial control without extending that to other political leaders.

“Our request for that was declined. It was not just for ourselves it was political parties across the board.

”They said no. They said this was not political. Frankly, yeah right would have been the answer to that. This is either naive or worse than naive.”

Lucky he didn’t get his wish or he could be the one referred to Police now along with John Key’s show.

Apparently the Electoral Commission is going find that the Radio Live show with John Key broke the law and refer the issue to the Police:

An Electoral Commission ruling due out today has found the Radio Live show hosted by John Key last September was an election programme and therefore a prohibited broadcast.

Newstalk ZB’s obtained a copy of the commission’s decision over a Labour Party complaint about a show the Prime Minister conducted on Radio Live during last year’s election campaign period.

The commission’s found the broadcast was an election programme and a breach of the Broadcasting Act.

Radio Live will have little to worry about because the Police never do anything with referrals, instead ignoring repeated and continual breaches of the Labour party that are referred by the Electoral Commission.

This case more than any other though will highlight the problems we have with Electoral law and the ability to prosecute people who breach it. If the Police fail to act then we really must push hard for reform around crimes political and follow Australia and have an Independent Commission Against Corruption.

Good, if you can’t follow the rules you deserve to be prosecuted:

The Electoral Commission has referred the following matter to the Police:

• ACT on Campus ‘Not your typical party’ flyer, baseball cap and t-shirt.

It is the Electoral Commission’s view that the publication of the ACT on Campus flyer, baseball cap and t-shirts constitutes a breach of sections 204F and 204H of the Electoral Act 1993 because the items are election advertisements that did not contain a valid promoter statement and were not authorised in writing by the ACT party secretary.

As this matter is now with the Police, the Electoral Commission will not be commenting further.

Now if the Police could progress the log jam of complaints referred to them I might have just a bit more confidence in our Electoral System, that repeat offenders and law breakers actually get prosecuted.