Clickbait: Do the Internet Party's rules breach the Electoral Act?

The Internet Party's candidate selection rules very well might breach the Electoral Act. This probably doesn't matter.

I had another post I wanted to write on Teina Pora's case and the gap I think it has revealed in our "Justice" system, but it'll have to wait for the moment. Because one of David Farrar's apparently obligatory three-posts-a-day on Kim Dotcom (obsessed, much?) makes a more immediate demand on my attention.

In it, he asks whether the Internet Party is "democratic enough" to be registered with the Electoral Commission. Before I resolve that question (spoiler alert - the answer is "it actually doesn't matter"), there's a first issue to get out of the way. In his post, he mentions that he's "just been reading the Electoral Law in NZ textbook by Andrew Geddis (it was my relaxing reading on the Milford Track – yes seriously!) ... ."

This makes me very happy, because the inspiration for my writing the text was precisely to provide just this sort of relaxing entertainment. About seven years ago, on my own journey over the Mackinnon Pass, I looked around the drawn, haggard faces of my fellow trampers in the huts at night and thought "what these people really, really need to take their minds off their travails (and the trail) is a detailed analysis of the legal rules that give shape to the 'democratic process' in New Zealand". So I'm deeply gratified that the resulting book appears to have achieved that end so admirably. Now to convince the publisher of the wisdom of sending hundreds of copies to the bookshops of Te Anau ... .

However, back to the main point of DPF's post. Here's what he suggests:

...the Electoral Commission may need to determine if the Internet Party is democratic enough to be registered as a political party. It is definitely arguable it is not. Basically the founders can maintain permanent and total control of the party by not agreeing to nominate anyone else to join the Executive Committee. And the Executive Committee makes all the selection decisions.

There are two separate points here. The first is whether the Internet Party's rules governing candidate selection are consistent with the Electoral Act's requirement that parties use "democratic processes" when choosing who will stand under their banner. The second is whether that first question is at all relevant to the Party gettting registered. I'll answer them in reverse order.

It is true that all parties registered with the Electoral Commission are under a statutory obligation to "ensure that provision is made for participation in the selection of candidates representing the party for election as members of Parliament". There's a couple of things to note, but.

One is that this obligation applies to registered parties. In other words, for it to kick in, the party already must be registered with the Commission. (In fact, a party doesn't have to have any rules at all before being registered, as it is only required to provide the Commission with a copy of the party's rules a month after registration.) And when it comes to the Commission carrying out the party registration process, it has no legal authority to look at a prospective party's candidate selection rules (assuming these exist). The way registration works is that:

  1. An applicant must give the Commission the information that the Electoral Act requires (not including anything about its candidate selection rules);
  2. They also must (following a recent law change) pay a $500 application fee;
  3. The Commission checks the party's name isn't one that is forbidden;
  4. The Commission checks there isn't any other reason to refuse registration (which, again, doesn't include anything about the party's candidate selection rules);
  5. If nothing shows up in this process to stop a party being registered, it then must be registered by the Commission.
  6. Even if a party is registered and it subsequently turns out not to have the required "democratic process" selection rules in place, there is no ability for the Commission to take them off the register.

So that pretty much answers the immediate point of DPF's post. The Electoral Commission won't refuse to register the Internet Party (at least, not based on its candidate selection rules) because that isn't a thing that the Commission looks at (or is allowed to look at) when registering parties.

End of story.

What, then, is the point of the Electoral Act's requirement that registered parties "ensure that provision is made for participation in the selection of candidates representing the party for election as members of Parliament"? After all, if a party can ignore this and still stay on the register of political parties (and thus contest the party vote at the election), then isn't it a purely paper tiger?

Well, maybe it is. The only real teeth and claws to this provision is that it gives a disgruntled prospective candidate (or ordinary party member) a ground on which to challenge candidate selection rules (and the way they are applied) in court. But, of course, that relies on there being some individual upset enough to get litigious against the party she or he purportedly supports and wants to represent.

Although likely to be very rare, such people do exist - see the example of Roger Payne. So let's imagine that in some future world, after the Internet Party is registered with the Electoral Commission, one such person goes into court and claims that the Internet Party's candidate selection rules breach their legal obligations under the Electoral Act. (Here we're coming back to the first issue I identified above.)

There are a couple of initial points stacked against any such claim. The actual demands of the Electoral Act are pretty minimal: so long as there is "provision ... made for participation in the selection of candidates ...  by ... delegates who have (whether directly or indirectly) in turn been elected or otherwise selected by current financial members of the party" then s.71 is met. Additionally, the Internet Party has as its legal advisor one Graeme Edgeler, and I'd be very, very loathe to think that he'd allow the Party to run under a set of rules that aren't consistent with the law.

Having said that, however, I think he might just have done so (or, at least, will do so if and when the Internet Party is registered with the Commission under its current set of rules).

Here's what those current candidate selection rules state (I'll only look at the party list selection process, as in the extremely, extremely unlikely event it gets any MPs into the House, they'll come from here):

First, there's an overarching rule:

12.1 The Executive Committee shall determine the selection and approval of Party List candidates and Electoral candidates for election to Parliament.

Then there is a more specific process set out:

12.4 The Internet Party’s Executive Committee shall produce the Party List. The process for selecting the Party List is:

12.4.1. In a general election year, the Executive Committee shall decide the time periods and deadlines for each stage of selecting the Party List;

12.4.2. The Party Secretary shall call for nominations for the Party List in accordance with the time period and deadline set by the Executive Committee;

12.4.3. Only Full members may be nominated for the Party List. Full members may nominate themselves for the Party List;

12.4.4. At the close of nominations, the Executive Committee shall rank nominees and produce an “Indicative Party List”, with no less than 9 and no more than 121 candidates;

12.4.5. The Party Secretary will distribute the “Indicative Party List” to members for consultation;

12.4.6. Members will rank the candidates on the “Indicative Party List”, in accordance with their own preferences, and will return the ranked “Indicative Party List” to the Party Secretary within a time period set by the Executive Committee;

12.4.7. Having regard to the ranked lists provided by members, the Executive Committee will produce a “Final Party List” at its sole discretion that will constitute the final Party List.

Note the relative roles of the "Executive Committee" and the membership generally. The Executive Committee (at its sole discretion) gets to both select who will be on the list and where they are placed on it. The membership gets to rank the Executive Committee's initial choices, but with the Executive Committee then only required to "have regard" to the outcome of this process when making its final decision.

What, then, is this "Executive Committee"? Well, the relevant point to note for this election is that it consists only of the people who are setting up the Internet Party without any membership input at all. See the party rules:

8.1 There will be an inaugural Executive Committee consisting of the founders of the Internet Party. The inaugural members of Internet Party Assets Incorporated will be the inaugural members of the Executive Committee. In the Internet Party’s second year, there will be an Annual General Meeting for Members to elect an Executive Committee as per these rules.

So, when it comes time to choose the candidates for 2014, the Internet Party's Executive Committee will be made up of the self-appointed "founders" of the Party ... irrespective of the party membership's views on their suitability or otherwise. Which means that any initial screening of prospective candidates for the Party's 2014 list (consistent with rule 12.1), as well as the final decision on the list's makeup and rank order, will be taken by individuals who have not been (either directly or indirectly) "elected or otherwise selected by current financial members of the party".

Of course, members do still get to rank those prospective candidates that the Executive Committee initially chooses, and the Executive Committee must "have regard" to this process. And rule 12.10 does state that "Every Member is entitled to actively participate in ranking the Indicative Party List", which adds nothing appreciable to rule 12.4.6. So there is rudimentary "provision ... made for participation in the selection of candidates".

But it is incredibly rudimentary, and it only applies after the Executive Committee (which is unelected/not selected by the members) already may have used its general power under rule 12.1 to decide which of the various individuals putting themselves forward as prospective candidates will be allowed on to the "indicative party list". (And note that it must be able to do so ... what if 122 or more people put themselves forwards as prospective party candidates?)

All of which means that I rather think that DPF might be right when he questions whether the Internet Party's rules will meet the requirement of s.71 of the Electoral Act (once it is registered with the Electoral Commission) - at least, with respect to how those rules apply for the 2014 election.

Of course, it probably doesn't matter. I have grave doubts that the Internet Party will make it as far as selecting candidates (and even graver doubts that any of those candidates have any sort of show at being elected to Parliament). Further, the only way to see if the Internet Party has fallen short of s.71 would be to go to court. And the only people with sufficient "standing" (i.e. a direct enough interest) to bring the question to court are those presently joining up to the Internet Party, and who likely don't care very much about the issue.

But, still - I'm glad DPF got something out of his trek through the Fiordland forests.