Questions after NZ First files “materially different” donation return

NZ First seems to have changed the way it is reporting donations given to the NZ First Foundation in the party’s latest annual electoral return, which has raised further questions about whether they were correctly reporting donations in past years.

Electoral law professor Andrew Geddis said the return this year was “materially different” to last year, with much more money declared.

The NZ First Party is currently being investigated by the Serious Fraud Office over how it has been handling donations via the NZ First Foundation trust.

Winston Peters has claimed the party has never broken any electoral laws.

From RNZ in April:  SFO decision over NZ First Foundation will come before election

The Serious Fraud Office says it is on track to make a call before this year’s election on whether to lay charges in relation to the New Zealand First Foundation, which has been bankrolling the New Zealand First Party.

When the SFO first decided to look into the case, on 11 February, Peters challenged it to find the evidence and proof to make its case.

“They would have no such proof and no such evidence and we’ve got a legal opinion to back up what we have said.”

Yesterday from RNZ:  Foundation donations not named on NZ First electoral return

New Zealand First has once again opted not to name any donations from the mysterious foundation bankrolling the party on its electoral return.

But an electoral law expert said the party did for the first time seem to be including donations to the New Zealand First Foundation in an aggregated total – which called into question the accuracy of returns from previous years.

And for the first time since 2008, the party has named two external donors in its returns – a Wellington property investment company that agitated strongly against a capital gains tax and a wood exporter who owns a private island in the Bay of Islands.

Under electoral law, as well as naming donors who give more than $15,000 in a calendar year, parties must also declare the total amount of any smaller donations of $15,000 or less.

In its return, NZ First declared just over $317,000 in such donations, including 13 donations between $5000 and $15,000 – totalling just under $155,000.

It is not clear whether the individual donations the foundation received are included in that total, some of which were just under the $15,000.01 level at which the donors’ names would have to be made public.

Otago University electoral law professor Andrew Geddis said the return this year was “materially different” to last year, with much more money declared.

That raised questions about how the party had declared donations in previous years, Geddis believed.

“If it has started to treat money to the New Zealand First Foundation as if it was money to the New Zealand First party … it raises the question of why that didn’t occur in previous years.

“It also calls into question the robust assurances that [NZ First party leader] Winston Peters has given that the law was correctly followed in those earlier years.”

From Electoral Commission Party donations and loans:

NZ First total party donations:

  • 2019: $369,535.17
  • 2018: $87,689.60
  • 2017: $546,253.77

NZ First total party loans:

  • 2019: $44,923.00
  • 2018: $76,622.00
  • 2017: $73,000.00

2017 was election year so higher donations are to be expected, but the big drop in donations reported for 2018 looks remarkably low.

As Geddis says there are problems with the high threshold for declaring donors:

The underlying problem was the $15,000 threshold before a donor’s identity had to be declared, Geddis said.

That was “a lot of money”.

“What we see is, in essence, the New Zealand First party has received something like $150,000 from 13 individuals. We have no idea who those 13 individuals are, we’ve no idea of their links to the party, what they might want from the party – and, frankly, I don’t think that’s really a good enough situation to have in New Zealand.”

Maybe it wouldn’t be a problem if parties didn’t try to game the rules to hide larger donors.

In January the Serious Fraud Office filed criminal charges against four people in relation to donations paid into a National Party electorate bank account – see SFO National Party Donations

Results of Māori Electoral Option

there have been small movements of voters from the Māori Roll to General Roll and vice versa, and small increases in the total number enrolled on the Māori Roll , with 52% of Māori on the Māori Roll.

Electoral Commission:

The 2018 Māori Electoral Option ran from 3 April to 2 August and gave all enrolled voters of Māori descent the opportunity to choose whether they wanted to be on the Māori roll or general roll for the next two general elections.

Changes to electoral roll type

  • Māori Roll to General Roll: 10,163
  • General Roll to Māori Roll: 7,956

New enrolments of Māori descent

  • General Roll: 1,808
  • Māori Roll: 3,407

Impact on rolls

  • Net Impact on Māori Roll: +1,200
  • Net Impact on General Roll: +4,015

Total rolls at end of option

  • Māori on Māori Roll: 247,494 (52%)
  • Māori on General Roll: 224,755 (48%)

So that’s fairly evenly split.

I don’t see a big deal with the Māori seats remaining.

Electoral Commission ineffective again after advertising breach

The Electoral Commission as tut tutted a bit, nine months after the election, and not even slapped Patrick Hogan over the hand with a wet tote ticket after he claimed that he didn’t know the rules when advertising in support of NZ First during last year’s election campaign.

The rules are effectively a waste of time.

Stuff reported (in Officials warned against racing tax breaks):

Former Cambridge Stud owners Sir Patrick and Lady Hogan broke electoral rules by paying for a full-page advertisement in industry newspaper The Informant in September.

That earned them a slapdowns from the election watchdog this week.

A spokesperson for the Commission said: “It is the Electoral Commission’s view that the advertisement was a ‘party election advertisement’ as defined in the Electoral Act. The advertisement should have had the written authorisation of the party secretary from New Zealand First prior to the advertisement being published. In addition, the advertisement should have contained a promoter statement. ”

She said the Commission accepted that the breach was unintentional and the Hogans were unaware of the rules.

Hogan has been around long enough, and I think promoting NZ First long enough, to have known there were electoral advertising rules. It could have been some sort of deliberate ignorance, but I don’t see how he wouldn’t have known what he was able to do within the rules.

“Having considered all the circumstances including the modest expenditure involved and the circulation of the publication, the Commission will not be taking the matter any further.  The Commission has explained the rules to Sir Patrick and The Informant and recommended that they seek advice on election advertising in the future.”

So breaking the electoral rules isn’t a big deal as long as you say that you will check them out before doing it again.

In the meantime the race horse breading industry has been given tax breaks in this year’s budget despite IRD recommending against it again.

Electoral Commission recommendations for improving democracy

Bryce Edwards has a good summary of an Electoral Commission report: 10 ways to improve our elections

Last week the Electoral Commission released its report on the 2017 general election. It contained useful information about voting last year but, more importantly, it made a number of important recommendations to Parliament about improving New Zealand elections.

Recommendation 1: Fix MMP by dealing with earlier recommendations

The most important recommendation to come out of the report is for Parliament to again consider the 2012 Review of MMP. This report came up with some significant improvements, but was buried by the then-National government, which claimed there was not adequate consensus in Parliament to implement the changes.

It remains a disgrace that the 2012 review was ignored by self-interested politicians.

Notably, this 2012 report suggested that the MMP threshold of 5% should be lowered, because it had proved to be too high, in terms of being a barrier to new political parties gaining election to Parliament. To back up this point, the Commission’s recent report includes a table of information about the declining number of parties representing in Parliament.

With both NZ First and Greens just bettering the threshold in the 2017 election and at real risk of dropping below it next election there is a real risk that the number of parties will drop even further, with little chance of a new party getting into Parliament.

The 5% threshold is a failure for representative democracy and should be reduced at least to 3%, if not lower. It has been retained to protect large parties and is anti-democratic.

Recommendation 2: Update the prohibition on electioneering on election day and during the advance voting period

The Commission says the current election day rules, which essentially prohibit electioneering, are inconsistent with the rules in place during the advance voting period. This means there are only very limited rules for the couple of weeks prior to election day – when about half of votes are now made – but suddenly things become extremely restrictive on the actual final day of voting.

The current election day only rules have become a nonsense.

Recommendation 3: Fix the election broadcast allocations and prohibitions

This is especially a problem in terms of the money allocated each election to the parties, which they can spend on television, radio, and now also internet advertising. Last year the Commission allocated $4.1m to parties, but notes the ongoing complaints about lack of fairness in these allocations, drawing particular attention to smaller parties who claim to be disadvantaged by the unequal distributions of monies.

The Commission recommends a review. But these issues fall into both the “too hard” and “self-interest” baskets of the current parliamentary parties who benefit from the broken system.

The major beneficiaries of a badly flawed system should not be the ones who decide on a system that favours them.

Recommendation 4: Update rules about the misuse of electoral roll data

All sorts of companies, such as debt collectors and marketers make use of the printed electoral roll in order to carry out their commercial activities. There are huge privacy issues involved, which the law appears to be ignorant of, and there are people who therefore choose not to enroll to vote precisely because they don’t want their residential addresses to be made public.

The risk is made worse by the fact that the political parties are provided with the electoral roll in electronic form. This is a provision designed by the politicians so that their parties can more effectively send election advertising to voters and so forth. It’s questionable whether the parties should be given this data, and it seems that it’s an accident waiting to happen, as there are no procedures or guarantees that any of the 16 registered political parties will prevent this personal data falling into the wrong hands.

Recommendation 5: Allow Māori voters to change rolls at any time

Māori voters should be able to switch between the general and Māori electoral roll at any time according to the Commission. Currently, people of Māori descent can only change during the Māori Electoral Option period, every five-six years.

It seems odd that roll switching can only happen at specific times each 5-6 years.

Recommendation 6: Electoral offences system needs updating

When someone is deemed to have breached election rules, the Electoral Commission’s only remedy for this is essentially to refer the case to the Police for prosecution.

A substantial review of these laws is called for by the Commission. And although the politicians would surely welcome a chance to fix up some of the problematic rules they have to deal with, this area is a minefield of difficulty which could cause all sorts of prolonged debate about how to ensure elections are properly run without undue influence.

And the Police usually do nothing, or if they do something it takes so long it is ineffective.

Recommendation 7: Ban rosette wearing in polling places

Following last year’s election there were 342 complaints to the Commission about political party scrutineers wearing their party lapel badges or rosettes at the polling booths. Currently this is legal, but there seems to be an expectation that all voting places should be “campaign-free”, and therefore the Commission recommends a ban.

Seems trivial, but “campaign-free” polling places seems reasonable.

Recommendation 8: Allow voters to enroll on election day

Currently, voters can enrol to vote right up until election day. They can even enrol to vote at the same time that they make an advance vote in the two weeks leading up to election day. And of course, there are always a number of unenrolled voters who attempt to vote on election day, and have to cast a “special vote”, but have these disallowed. In 2017, 19,000 people had their votes disallowed. But the Commission suggests they should be allowed to enrol voters on election day.

A no-brainer – the current election day ban on enrolment is dated and ridiculous.

Recommendation 9: Introduce a fixed date for elections

The current rules for setting the triennial general election date are deliberately loose, allowing incumbent governments the choice of when to go to the polls. The Commission raises the prospect of changing the law to provide for a fixed election date – they suggest some discussion about this. They say that this would provide more certainty for voters, campaigners and candidates.

Is this fixing a problem that isn’t really broken? Some flexibility and pragmatism about election dates can’t be a problem.

Recommendation 10: Update where voting booths can be sited

The locations were people can cast their vote should be modernised according to the Commission. Currently there are a number of prohibitions relating to the sale and consumption of alcohol, which was historically meant to prevent voting in pubs where undue influence might occur. But now the Commission wants to set up booths where voters regularly gather, such as supermarkets and shopping malls.

In fact, in 2017 the Commission was remarkably successful in setting up advance voting booths in such places. But for election day, the rules are stricter, which meant that the booths had to be removed.

Bizarre. You can buy a bottle of wine or beer at a supermarket and then vote before election day but not on election day.

Finally, there are plenty of other recommendations of various levels of importance in the report.

The full Electoral Commission report.

Advance voting well ahead

Advance voting in the first week totals 445,350 which is well ahead of last election.

Cumulative Advance Votes Issued

Daily totals for 2017 are approximate only and may be subject to change.

Date 2017 General Election 2014 General Election 2011 General Election
Wed-Sat 49,497 18,818
11 September 39,643 22,234 8,893
12 September 48,545 22,846 8,845
13 September 66,535 23,950 9,750
14 September 74,039 29,033 11,041
15 September 83,409 31,753 13,399
16 September 87,357 46,200 20,115
17 September 45,822
18 September 60,966 27,841
19 September 62,595 32,937
20 September 86,021 38,380
21 September 122,017 64,137
22 September 160,467 80,402
Overall total 445,350 717,579 334,558

It looks like the total could easily get up towards or past a million early votes.

Total turnout in 2014 was 2,446,279 votes.

See Has advance voting gone too far?

Advance voting can now be counted from 9 am on election day, so there should be a lot of the votes counted ready to be announced soon after 7 pm. Last election I think advance votes had similar percentages to the final vote, so we may have a good idea of which way the result will go not long after 7 pm.

Has advance voting gone too far?

Not long ago advance voting used to be available for people who were going to be unable to vote on election day.

With no change to electoral law (as far as I’m aware) it has changed markedly. Now all voters are being urged to vote early, for a number of reasonable and also self-interested reasons.

The Electoral Commission is promoting advance voting to try and increase voter turnout. That’s a reasonable aim, but there are some contradictions and serious questions need to be asked.

The Electoral Commission still emphasises strict limits on the use of media and social media on election day. We are supposed to refrain from doing anything that might suggest a party to vote for.

But in the two weeks of advance voting it is open slather, with parties and organisations  using advance voting to push their own interests and push people into voting for them with all advertising blazing.

Supermarket voting

We used to only vote in neutral community based polling booths, and had to make the effort to go and vote.

They now have advance voting booths in universities and shopping malls. People can be enticed by advertising to buy some chocolate at the checkout, then enticed to fix their future through a scratchy or lotto ticket, then punt on the lolly scramble party of choice on their way out.

A candidate can have a political rally at a university (they often do) and urge their audience into the on campus advance voting booth.

Considered votes versus impulse voting

In the not too distant past we had time to consider our options, then make the effort to go to a polling booth on election day like everyone else and cast our choice.

Now people are being pushed into impulse voting.

This could balance out, all parties can beat the election day blackout and get out their vote early.

Pensioners may be as enticed by convenience voting as much as young first time voters. We simply don’t know whether any party is advantaged or disadvantaged by the surge in advance voting.

We are likely to get more uninformed voters taking part, people who largely ignore politics who get enticed into jumping on the advance voting bandwagon.

Are more voters better for democracy?

We have been launched into a very different way of voting without due consideration for the implications.

Shouldn’t more be done to better inform voters (not by parties, they mislead far too much) and encourage them to vote, and then leave it to each of us to make the effort to participate in voting if we want to?

Or is it fine to get as many people on board the voting train regardless.

When will we get drive in voting? Tack a voting booth onto a queue at McDonalds or KFC? People have a few spare minutes to consider if they want a vote with their fries.

If the increase in advance voting continues we should at least look at removing the inconsistency of the election day restrictions.

I could post every day for twelve days pushing people to vote for a particular party or candidate – some blogs do that – but the 13th day is supposed to be a blackout?

That at least should be reconsidered.

Some sort of democratic process could also be considered for changes to the way we vote. Or doesn’t democracy matter any more?

If implemented sensibly online voting could at least be associated with more informed voting.

Advance voting 300k

There has been 308,191 votes cast in the first five days of advance voting, well ahesd of previous years.

Daily Advance Votes Issued

Cumulative Advance Votes Issued

McCarten and the intern scheme donor

When Labour’s intern scheme story broke in June it was reported that the scheme had been funded by one large donor.

Stuff: Two on Labour’s intern programme may have broken immigration rules as council member stands down

McCarten’s original plan was to have union funding, but it seems that was not forthcoming.

A big donor did back the plan, but their identity has not been released to the party or to the public.

Little said the party had disclosure obligations, both in terms of donors and spending. The party was dealing with that.

Little said the party had a moral responsibility to look after creditors and suppliers because there was the “potential” for a shortfall in funding raised for the intern scheme.

NZH: Mystery funder behind Labour intern programme – and party doesn’t know who

A mystery backer funded the volunteer scheme for overseas students working on Labour’s campaign – and even Labour does not know who it was or how much was involved.

Matt McCarten, who set up the scheme and ran it under his “Campaign for Change” organisation, told the Herald it was funded by a “private funder” who thought the scheme was a good idea.

McCarten’s confirmation of a “private funder” followed the release of a document obtained by Newshub which showed McCarten expected it to cost at least $150,000 and planned to get $100,000 from the FIRST and Unite unions, as well as seeking contributions from other unions and fundraising.

However, those unions said yesterday they had not put any funding in.

Labour leader Andrew Little said the party would disclose anything it was required to and would ensure third parties did as well. However, the party was still working out what funding there was in place.

At the time this sounded like avoidance from Labour (and it was successful avoidance). It should have been a simple matter of asking McCarten how the scheme had been funded to that stage.

The Herald also quoted Mike Treen, the Unite union’s National Director:

Treen said the union had taken part in the programme and planned to use the interns for a programme to enrol Unite members, but had not provided any direct funding.

No ‘direct funding’ is a curious reference.

David Farrar wrote to the Electoral Commission asking them to investigate the donation and funding. He published their response last week on Kiwiblog:  Electoral Commission rules Campaign for Change counts as Labour candidate donations

The Electoral Commission has investigated the Campaign for Change and made the following determinations:

  1. All funds spent by the Campaign for Change are Labour candidate donations and must be declared in returns after the election
  2. McCarten personally paid for the costs
  3. $65,095 was spent up until Labour formally took over
  4. The Campaign for Change was not a neutral enrolment exercise

McCarten had referred to a ‘private funder’, which clearly implies someone other than himself.

If McCarten was always the funder why did he mislead the public, and also apparently not divulge this to Labour?

This leaves questions unanswered.

Was there a private funder who backed out when the scheme became public and it looked likely the funder would be named as a donor?

Did McCarten donate with his own money? Or was it an indirect donation, with money given to him by ‘a private benefactor’, and then he handed that over to Labour?

Does it matter?

Labour seem finished with their use of McCarten’s services, and so they should be. He was always a high risk to them. McCarten must now surely be seen as politically toxic by any party.


Social media on election day

From Reddit: Anyone seen anything from the Electoral Commission about what to do with social media on polling day?

The High Court made a ruling last year that might mean the guidance the Electoral Commission has previously given regarding social media use during the election period and on polling day is no longer accurate. Has anyone seen any updated advice on this?

I can’t see a High Court decision from 2016 that seem address this. Perhaps related but on a different matter is THE ELECTORAL COMMISSION v WATSON & ANOR [2016] NZCA 512 [20 October 2016] but that looks at what constitutes an election advertisement (it related to the ‘Planet Key’ song).

Is anyone aware of anything else?

In 2014, the Electoral Commission put out guidance saying that if you posted something online before election day, and you’re not doing anything to make it reappear on polling day, you’re not going to be considered to be electioneering on polling day. For anyone not aware, it’s illegal under the Electoral Act to electioneer on polling day, with the exception of wearing a rosette.

Anyway following the 2014 Election, Winston Peters made complaints to the Electoral Commission about certain content online that he considered to be in breach of the Electoral Act. The Commission decided not to refer the content to the Police as they did not consider it had been published on polling day, as per the guidance I mentioned before. Winston Peters undertook a judicial review of that decision, and last year the High Court held that the decision of the Commission was based on an incorrect interpretation of the law.

I’m guessing the guidance will therefore be, if you’ve discussed the election on social media, you should deactivate your account before midnight on polling day until the polls close, but I’ve not seen anything to that end by the Commission. Have I missed that, or is this actually something the Electoral Commission hasn’t covered?

The Electoral Commission has two advisories on the use of social media on election day.


Social media on election day

There are additional restrictions on election day.  On election day (from midnight on 22 September until 7pm on 23 September) there is a general prohibition of the publication of any statement that is likely to influence which candidate or party a person should, or should not, vote for.

Election advertising does not have to be removed from social media so long as:

  • the material was published before election day
  • the material is only made available to people who voluntarily access it, and
  • no advertisements promoting the page or site are published on election day.

If you use social media, do not post messages on election day that could breach these rules.  The Commission recommends candidates and parties temporarily deactivate their Facebook campaign pages to avoid the risk of supporters committing an offence by posting on your page.  For other forms of social media where others can post comments the Commission recommends that where possible security settings are changed so that other people cannot post messages before 7pm on election day.

Posts on social media that are not connected in any way with the election can of course be posted on election day.

Last updated: 09 May 2017



Prior to Election Day

Prior to election day, there are a number of requirements that apply to election and referendum advertising.  These rules apply to election advertising in all media.
However there is a specific exemption in the legislation for any publication on the Internet, or other electronic medium, of personal political views by an individual who does not make or receive a payment in respect of the publication of those views.
Individuals expressing personal political views on their own site or through social media sites are covered by this exemption.

On Election Day

There are different rules that apply on election day.  For example, it is an offence, at any time on election day before the close of the poll at 7pm, to publish any statement intended or likely to influence any elector as to the candidate or party or referendum option for whom the elector should or should not vote.

These rules reflect the long-standing feature of New Zealand electoral law that voters should be free from interference and influence on election day.  They are the reason, for example, that all election billboards have to be removed before polling day.

These rules apply to statements published or broadcast in all media including social media.  The Electoral Act specifically addresses the application of these rules to websites.

Election material does not have to be removed from a website on polling day, so long as the material on the site is only made available to people who voluntarily access it.  New material must not be posted and advertisements promoting the website must not be published on polling day.

The Electoral Commission’s advice to people using social media is not to post messages on election day that could breach these rules. The prohibition of advertising on polling day enjoys strong public support, and significant breaches are likely to generate complaints.

The Electoral Commission’s role

The Electoral Commission does not proactively monitor all the circumstances and mediums in which breaches of the electoral law might occur.  However, where the Electoral Commission becomes aware of a breach through the media or receives a complaint the Commission will look into the incident and where appropriate refer to the matter to the Police.

During election year, the Commission does carry out standard media monitoring, both mainstream and online, to ensure accuracy of information and to correct misunderstandings where possible.

27 May 2017

I will put reminders on Your NZ about what can and what can’t be said on election day in order to comply with the law.

With an increasing amount of early voting this law seems a bit out of date. Early votes can be influenced by what is posted on social media, but not election day votes.


Party donations for 2015

The Electoral Commission has released the 2015 Party Donations and Loans returns, with National well on top and Labour lagging the Greens.

Total donations disclosed:

  • National $1,400,895. 85
  • Green Party $407,978.48
  • Labour $279,134.18
  • ACT Party $162,066.85
  • NZ First $79,620.50
  • Conservatives $39,460.00
  • Maori Party $28.050.00
  • ALCP (Cannabis Party) $1,492.00
  • Internet Party $676.65

Mana, United Future, Ban 1080, NZ Independent Coalition and Democrats for Social Credit had nil returns.

The Internet Party has quickly gone from riches (when Kim Dotocm was piling money in) to rags.

This indicates that Labour are struggling to get donations, getting significantly less than the Greens and nothing from large donations.

Total donations over $15,000:

  • National $214,152.68
  • Greens $237,010.47
  • ACT Party $74,378.25

Details and links to each party’s returns: 2015 PARTY DONATIONS AND LOANS RETURNS