The NZRFU's code of conduct requires that players "never argue with the referee.  Control your temper at all times." Peter Dunne could learn from it.

The saga of UnitedFuture's status as a party rolls on, with the most recent development being that the Electoral Commission has rejected its application to register. Peter Dunne apparently is meeting with the Speaker, David Carter, to discuss what implications this decision will have for his status as the leader of a party recognised for parliamentary purposes - a matter I've posted on here.

(For what it is worth, I predict David Carter will maintain his "grace period" ruling for the time being ... allowing UnitedFuture the opportunity to (properly) reapply for registration and the Commission time to consider that application. The Commission's decision isn't that UnitedFuture can't be registered - it's just that the application to do so wasn't in the required form.)

The Commission's full reasons for rejecting UnitedFuture's request is here, but in essence the main problem with it was that; "In its application (for registration) on June 11, UnitedFuture provided a spreadsheet with the names of its paid party members. The commission requires signed and dated forms for each member, either electronically or as hard copy."

The Commission's stance then attracted a fairly robust response from Peter Dunne:

"These guys still live in the days of quill pens and parchment. I think there's now pressure on the Minister of Justice, Judith Collins, to bring this rogue elephant into line. This is petty bureaucracy gone mad ... ."

Mr Dunne said the commission's insistence that it had to treat United Future as a new party was equally ludicrous, given it had been registered for 20 years until a few weeks ago.

"If we are not a new party, we should not be treated as a new party for registration purposes. It's as simple as that."

Strong words, indeed! But how justified are they?

Well, one matter we can get out of the way immediately. The Minister of Justice will not be acting to "bring this rogue elephant into line". The Commission is an Independent Crown Entity that operates without any direct ministerial control, and is subject to a statutory requirement that it "must act independently in performing its statutory functions and duties, and exercising its statutory powers." So unless Dunne means that there is pressure for Judith Collins to introduce a bill to amend the Electoral Act, he's talking nonsense on this point.

But what of Dunne's substantive complaint, that the Commission has somehow misused its authority in refusing to accept the UnitedFuture application? That requires a bit of a magical mystery tour through the law.

The Electoral Act establishes the following statutory scheme. First of all, note why party registration matters. It gets a party certain benefits. Most obviously, it lets a party contest the all-important party vote at each election; if you ain't registered, you can't put up a party list. Being registered also is a pre-condition to sharing in the broadcasting allocation distributed to parties prior to each election, which will net a party at least $10,000 of taxpayer's money. So putting an organisation on the register of political parties has pretty serious and important consequences in terms of electoral law - it isn't the sort of decision that the Commission ought to approach on a case-by-case, "common sense", do-what-seems-right basis.

(It also appears, according to Parliament's Standing Orders and the Speaker David Carter, that UnitedFuture becoming registered is a precondition to Peter Dunne maintaining his extra parliamentary funding - but that isn't a matter that arises under the Electoral Act and so it isn't relevant to the Electoral Commission's duties. How Parliament chooses to recognise and fund the "parties" represented within its walls is none of the Commission's business.)

Under the Act, there are only two sorts of parties: "unregistered" and "registered". There is no category of "registered for years but carelessly slipped beneath the necessary 500 current financial members requirement so had its registration cancelled but now wants to re-register" parties. Therefore, once United Future's registration was cancelled, it became an "unregistered" party just like any new political movement seeking to get onto the register for the first time. That may be "ludicrous" to Peter Dunne, but it's the way the Electoral Act works ... a piece of legislation, it should be noted, that he voted for back in 1993 and has shown no interest in amending since then!

Where any unregistered party wants to become registered, it must meet the mandatory statutory requirement in s.63(2)(vi):

An application for the registration of an eligible political party ... must ... be accompanied by evidence, in a form approved by the Electoral Commission, that the party has at least 500 current financial members who are eligible to enrol as electors.

So, the onus is on the party wanting to get registered to provide evidence it has sufficient membership to do so - with the Commission given a statutory power to determine the form that this evidence is to take. (I'll get to what the Commission actually requires in a moment). Then, under s.66(1):

The Electoral Commission shall refuse an application for the registration of a political party if—

(a) the application does not comply with section 63; or

(b) if it is satisfied that the party does not have 500 current financial members who are eligible to enrol as electors.

So, if a party wanting to be registered does not provide the Commission with the evidence of membership required by the Commission, it cannot be registered (and, if it does provide that evidence but the Commission concludes the party doesn't have the requisite membership, it also cannot be registered). Then finally, under s.70(2):

The Electoral Commission shall cancel the registration of any political party on being satisfied that the number of current financial members of the party who are eligible to enrol as electors has fallen below 500.

This is, of course, the provision that led UnitedFuture into its present trouble. The party's secretary complied with s.67(3)(d):

It shall be the duty of the secretary of any political party registered under this Act ... to notify the Electoral Commission if the number of current financial members of the party who are eligible to enrol as electors falls below 500.

He did so by refusing to supply an annual declaration under s.71A:

The secretary of any political party registered under this Act must ensure that the Electoral Commission receives by 30 April in each year a declaration made by the secretary in the manner provided by section 9 of the Oaths and Declarations Act 1957, which declaration must ...state whether the party has at least 500 current financial members who are eligible to enrol as electors.

I note in passing that Peter Dunne is claiming that "UnitedFuture is being penalized for its honesty", in that had the secretary just made the relevant annual declaration without being sure the party had the requisite number or members, the Commission would not have cancelled the party's registration. I guess this is true ... insofar as he's suggesting it really was an option for his party secretary to ignore his legal obligations and commit an offence that could land him in jail for up to three years!

Anyway, the real issue then becomes, what does the Electoral Commission demand from a currently unregistered party as evidence that it has the required 500 current financial members who are eligible to enrol as electors? Well, it requires the following:

For each member a personally signed and dated declaration (usually the membership form) which contains:

  1. the member's name and residential street address
  2. confirmation by the person that they are eligible to enrol as an elector
  3. the amount of the membership fee that has been paid to the party
  4. authorisation for the party to record them as a financial member of the party
  5. authorisation for the party to release their membership details to the Electoral Commission for the purpose of the application to register the party under the Electoral Act.

To check eligibility to enrol as an elector, it can help to include further questions relating to the eligibility requirements.

The Commission requires the original forms, so you should take copies for your own records if required.  The original forms will be returned to the applicant once the application is determined.

There is a template party membership form with content that meets these requirements below.  If you wish to pick up this content and include it in your form then the Electoral Commission would be happy to check your proposed form before you use it.  ... New parties are urged to take advantage of this offer to ensure that the completed membership forms are not rejected outright.

Two things might be noted about this. First of all, the Commission is pretty clear about what it expects parties to give it by way of evidence of membership, so a party can hardly claim to be blindsided by the need to provide the original membership forms. Second, there is a reason why the Commission demands the original of a form containing this information (or, at least, a .pdf of such forms). Under the Electoral Act, a "current financial member" is someone: 

(a) whose membership of the party resulted from an application made by the member to join the party; and

(b) who is, under the party’s rules, subject to an obligation to pay to the party a membership fee—

(i) on becoming a member; and

(ii) then at specified intervals of not more than 3 years; and

(c) who has paid to the party every membership fee that has for the time being become payable by the member in accordance with those rules.

For the Commission to be able to assess whether or not a party actually has the requisite number of current financial members to get registered, it must be able to see that the people claimed as members have actually agreed to join in person, that they applied to join and paid their membership fee before the application was made, and that they are willing to have the party share their details with the Commission (which is a Privacy Act requirement). All of which is why a simple spreadsheet containing the names and addresses of claimed party members (as supplied to the Commission by UnitedFuture) really isn't good enough.

So I'm not sure that damning the Commission for its decision really is appropriate. Given the statutory duties it has, and the consequences for the electoral process of allowing a party to become registered, it seems to me that it really couldn't bend its existing rules and accept UnitedFuture's request. And while that decision might be aggravating to Peter Dunne, blaming the ref for applying the rules of the game in a way you don't like is a bit on the nose.

Having said that, however, there is one issue that might bear further examination by the Commission. It is very keen to move to a system whereby new voters (people turning 18) can enrol online, rather than having to do so by way of a physical application with signature attached. This is a recognition of how the world now works - people (and the youth, especially) more and more expect to be able to do everything from their keyboards. And that applies just as much to joining and remaining a member of a political party as it does to things like paying bills, booking a plane flight, or enrolling to vote

I do wonder, therefore, if there might not be some room for the Commission to think about developing a process whereby parties can accept online membership applications in place of paper ones. After all, there is no statutory requirement that a party member physically sign a membership application in order to count as a "current financial member" (as there presently is to enrol to vote - which is the main obstacle to any move to full online enrollment). And it is not an offence for someone to falsely sign up as a party member using a fake name and address, so someone adding a made-up signature to a document doesn't carry any extra legal consequences.

Therefore, it is not clear what added value there is in a requirement that parties only may claim "current financial members" using physical membership forms with signatures attached. A printout of 500 completed on-line forms containing the information necessary for the Commission to check whether each person really is eligible to enrol as an elector, along with evidence that the person has paid any relevant membership fee, would seem just as able to provide the necessary basis for the Commission to accept that the party has met the legislative requirement to register.

Comments (15)

by Steve on June 20, 2013
Steve

The majority of the electoral law that we currently have, has been written during the 29 years that Mr Dunne has been an MP. Any problem that he has identified, he was probably responsible for!

by Graeme Edgeler on June 20, 2013
Graeme Edgeler

The majority of the electoral law that we currently have, has been written during the 29 years that Mr Dunne has been an MP.

A great deal of our electoral law is in the same form it was in in the 1956 electoral act. You might be right about 'most', but a lot of it is ancient.

by Phil Lyth on June 20, 2013
Phil Lyth

I very much agree with Andrew here  -  the law is clear and is applied even-handedy by the Commission.

A couple of points:  firstly, to remind the reader that 17 year olds are allowed to "pre-enrol"  (s82(2) of the Act) and they are automatically added to the electoral roll on their 18th birthday. Young people don't have to wait to turn 18.

by Phil Lyth on June 20, 2013
Phil Lyth

Second, I disagree that there is needed "a process whereby parties can accept online membership applications."  Rather, it is about having a robust process where people (new voters and others) can securely conduct their business online with Government and others.  


I suspect that much of the groundwork has been done with the Electronic Transactions Act 2002, the Electronic Identity Verification Act 2012, the Identity Information Confirmation Act 2012, and the i-Govt system.

 

While I am sceptical that this will happen in the near future, I have some reading to do about the legislative framework.

by Andrew Geddis on June 20, 2013
Andrew Geddis

@Phil,

You can already amend your enrollment details on-line, if you've registered with the i-Govt system. As I say, the issue holding up on-line enrolment in the first place (or, on-line pre-enrollment, if a 17 year old so chooses) is the requirement in s.85(1) that "every person making any application or declaration in respect of registration as an elector shall sign or place his or her mark on the application or declaration." But the Commission is keen to get rid of this, so as to allow the whole process to take place over the web.

Now, i-Govt lets this happen without concerns about fake enrollments - you can be sure that it is real people enrolling, and that each person only enrolls once. But why would you need to use i-Govt (or similar) in order for someone to become a current financial member of a political parties? Recall that the Commission already does random sampling of a new party's membership list to confirm that those included in it are real people who have actually joined and are eligible to enrol as electors. So if the Commission is already doing this checking, I'm not sure why it matters whether they've been given "old school" paper signed by the member or "newfangled" records of on-line applications. And, equally, I don't know why we'd worry about faked on-line applications when it's just as easy to fill out a party membership form as "M Mouse, 1 The Clubhouse Lane" and hand over the $2/$5/$20 fee.

Of course, I'd note that UnitedFuture appears to have simply given over a list of names and addresses to the Commission and said "here's our membership". I agree with the Commission that this isn't sufficient.

by MikeM on June 21, 2013
MikeM

Thanks for the summary of the situation, Andrew.

Peter Dunne is claiming that "UnitedFuture is being penalized for its honesty", in that had the secretary just made the relevant annual declaration without being sure the party had the requisite number or members, the Commission would not have cancelled the party's registration. I guess this is true ... insofar as he's suggesting it really was an option for his party secretary to ignore his legal obligations and commit an offence

I find this whole thing intereting because to me it seems completely possible that other parties also have no satisfactory paper records of their membership, but are still making the annual declaration completely legally thanks to having enough evidence to satisfy themselves.  If so, they might be a single incompetent Secretary away from missing the declaration deadline and then being unable to re-register.

I've never joined a political party and don't know what the annual renewal processes are like, but as I'm sure some will have had certain members for decades, I'd now be interested to see if any of the big parties push out new paper declaration forms to all their members, just to ensure they have the required evidence in case they find themselves in the same position.

I do wonder, therefore, if there might not be some room for the Commission to think about developing a process whereby parties can accept online membership applications in place of paper ones.

Would there be any benefit in considering something comparable with the USA, whereby electors can  somehow indicate a party affiliation at the time they enrol?  That's a very simplistic way of putting it, of course, which doesn't take into account checking of actual party membership, payment of subs, people who might want to belong to multiple parties (for some reason), and so on.

by Andrew Geddis on June 21, 2013
Andrew Geddis

Mike,

Note, however, that there is no statutory requirement that parties sign up members in any particular way. All there is is the Commission's requirements when a party first wants to register. So once a party has been registered, it can sign up/renew members in any way it wants (so long as they pay a membership fee at least every 3 years) - and they don't have to provide the Commission with ongoing evidence of having 500 members in any particular form (all they need to give is the Secretary's annual declaration that they have such members - which doesn't have to mean that they have physical paper forms with signatures on them).

That being said, under section 70 of the Electoral Act:

(2) The Electoral Commission shall cancel the registration of any political party on being satisfied that the number of current financial members of the party who are eligible to enrol as electors has fallen below 500.

(2A) For the purposes of exercising the powers conferred on it by subsection (2), the Electoral Commission may require a political party to supply to it a list of the party’s current financial members within any reasonable time that the Electoral Commission specifies.

So, for example, if a registered party gets (say) only 200 party votes at an election, the Commission may ask it to show it still has 500 current financial members - but in this case, all the statute says is that the party must give the Commission a list of those members (which is what UnitedFuture tried to do when seeking registration).

The point, such as it is, is that new parties would seem to have a more onerous job of signing up members (it has to do so using physical forms with signatures, as this is all the Commission will accept for registration purposes) than do already registered parties (who apparently can sign up members in any way they want, so long as the member asks to join and pays the requisite membership fee).

Finally, as for transplanting the US system here ... the reason that voters can register as Republicans/Democrats/etc over there is to allow them to participate in party primaries to choose candidates (which the states regulate, as well as general elections). Not sure the same need exists here ... putting to one side the whole requirement that we have for members to be "financial" ones (i.e. to put some cash behind their decision to join a party!).

by MJ on June 23, 2013
MJ

That's a lot of words to say what you said in the title- the guy's a whinger who is used to or expects the offside rulings to be a lot more relaxed for him.

by Andrew Geddis on June 23, 2013
Andrew Geddis

That's a lot of words to say what you said in the title...

A comment that could probably be made in respect of any given post I write!

by Siena Denton on June 25, 2013
Siena Denton

Kiaora Andrew.

I was engaging in some light reading at the weekend given that the weather wasn't so flash in Wellington.

I call this light reading because it made me laugh.

it was the Hansard Debates - Parliamentary Service Amendment Bill - First Reading, dated 20th May 2008.

http://www.parliament.nz/en-NZ/PB/Debates/Debates/3/e/a/48HansD_20080520_00001142-Parliamentary-Service-Amendment-Bill-First.htm 

This is what made me laugh...

Hon PETER DUNNE (Leader—United Future) : United Future joins other parties in supporting this bill. I will not go over the history of the reasons why such a measure is necessary. I want to make just one observation. It is a sad commentary on our times perhaps that we now face the requirement to legislate for what was always regarded to be the case. In fact, in earlier times we would have simply carried on the way that we were and none would have been too concerned about it. I recall the famous case of the gentleman, whose name temporarily escapes me, who in 1954 took this Parliament to court because he discovered that the writs for the calling of the 1946 election had been issued improperly and he therefore contended before the court that not only was that election invalid but every subsequent action of the Government between that date and the date in 1954 when he lodged his action was equally invalid.

Hon Dr Michael Cullen: Was it Kevin Brady?

Hon PETER DUNNE: No I do not think his name was Brady. When the Supreme Court heard the case it ruled that he was correct but that the consequences of giving some effect to the decision would be simply impractical so it let matters lie. That was an eminently sensible solution. Unfortunately, such solutions do not seem to be de rigueur today and when we become apprised of a situation such as this, which we all know is a nonsense, we have a requirement for legislation to put right what we have always thought was the case. If that is the way we do things in this day and age, so be it. However, it is an unfortunate situation and it makes one wonder what else we will discover in due course that we have long thought was legal and permissible is not and needs to be corrected.

This is not a particularly controversial matter. It is a straightforward matter and I welcome it going to the Standing Orders Committee and soon being back here to be passed into law so that the next group of members of Parliament who may be affected by it can rest easy on election night that whatever their fate they will at least get their allowances paid between that date and the return of the writs.

 How ironic, in some way it appears now that Mr Dunne (and his non-existent Party whose attempt at registration has been declined as it doesn't meet the statutory requirements set out in the Electoral Commission Act), is now himself awaiting his own fate at least in the interim from that dreadful Mr SPEAKER!

Who knows, maybe that "famous case of the gentleman...who in 1954 took this Parliament to court because he discovered that the writs for the calling of the 1946 election had been issued improperly and he therefore contended before the court that not only was that election invalid but every subsequent action of the Government between that date and the date in 1954 when he lodged his action was equally invalid" , could be rekindled and retested in 2013 as I do not see in the Standing Orders a "grace period" rule at all.

All I can see in my opinion is that this SPEAKER is stalling, for whatever the reason maybe only he knows.

The rules are the rules as set down or set in parliamentary concrete and if it's good enough for the Electoral Commission to abide by their statutory requirements, than it's jolly well good enough for that SPEAKER to follow parliamentary proceedings as well.

He really annoys me, so I don't watch live Parliamentary Debates and Question & Answer time anymore - I found the SPEAKER to be biased and many a time he had me quite addled, not at all pleasant to view, let alone the buffoonery from one side of the House to the other.

Bye.

 

 

  
by Andrew Geddis on June 25, 2013
Andrew Geddis

Siena,

That "famous case of the gentleman" involved one Mr Simpson.

by Rich on June 25, 2013
Rich

Currently i-Govt wouldn't be available to a political party, and I'd be concerned if it became straightforward for internet sites to demand positive ID, as this would in effect create an online identity card.

Minus that, any kind of online signup is problematic. The Electoral Commission hasn't got the funding or expertise to audit political party websites to assure itself of the integrity of their membership processes. 

It would be straightforward at the moment for a misguided party supporter to sign up hundreds of fake members, paying with prepaid credit cards or similar. There wouldn't be any way of tracing them (without involving GCSB, and their success wouldn't be guaranteed). There also wouldn't be any redress from the party, who are under no duty of care to validate their members.

 

by Andrew Geddis on June 25, 2013
Andrew Geddis

It would be straightforward at the moment for a misguided party supporter to sign up hundreds of fake members, paying with prepaid credit cards or similar. There wouldn't be any way of tracing them (without involving GCSB, and their success wouldn't be guaranteed). There also wouldn't be any redress from the party, who are under no duty of care to validate their members.

Accepted. But how does the current process (requiring a physical sheet of paper with a signature) ameliorate this concern? I, as a rabid supporter of UnitedFuture, am able to go through the phone book and take people's names at random, fill out membership forms for them, sign "their" signature at the bottom of said forms and then send the completed paperwork in to the party secretary along with a $10 note (or whatever the membership fee is). In doing so, I haven't committed any offence - it's not illegal to falsely sign a party membership form. And the party secretary (as you note) isn't under any duty of care to validate all these new members irrespective of how they join.

So the risk of false members exists no matter how people are allowed to join parties - which is why the Electoral Commission carries out a random sampling of claimed members to check they really are members. In which case, evidence that people have signed up via a website/on-line form is just as "good" as is a physical paper form. Isn't it?

by Graeme Edgeler on June 26, 2013
Graeme Edgeler

I, as a rabid supporter of UnitedFuture, am able to go through the phone book and take people's names at random, fill out membership forms for them, sign "their" signature at the bottom of said forms and then send the completed paperwork in to the party secretary along with a $10 note (or whatever the membership fee is). In doing so, I haven't committed any offence - it's not illegal to falsely sign a party membership form.

I really hope you don't teach criminal law :-)

This behaviour is proscribed by section 256(2) or 257(1)(c) of the Crimes Act 1961. The punishments are quite serious.

by Rich on June 26, 2013
Rich

And I believe a graphologist could identify common handwriting on the physical forms. One could certainly prove that a form had *not* been signed by the person named - with a computer record this would be hard to impossible.

As lawyers, you must come across this - there is a gradation of acceptance from clicking "ok" on a website through to having the agreement engrossed, witnessed by an independent lawyer and initialled on each page. A signed form is in the middle of that scale, which is probably where we should be in validating party membership.

 

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