Electoral Amendment Bill (No 2)

Thank you, Madam Chair. This part of the bill deals with some associated but very important issues, ensuring the integrity of elections through controlling other forms of foreign influence. So the first of those defines the party secretary by functions that the person performs and says that the person designated as party secretary must live in New Zealand. The other major change, or minor change with significant impact, is that in relation to advertising, and it, effectively, says that advertising online or on social media must carry the same promoter statement or attribution that advertising in any other medium, particularly print and television and radio, also carries. That way, we know who is paying for advertising; we know who is trying to influence the electorate. These matters tidy away something that I think, given the presence of advertising on social media, might have been done some years ago, but it makes sense to do it now to address that issue that New Zealand, through this Parliament and its Justice Committee, and through reportage on the evidence gone to that committee, knows is a real risk for New Zealand. So on that basis, this simply tidies that away and closes the circle on foreign interference and foreign influence.

It is just extraordinary that this very minor provision that requires a party secretary to be residing in New Zealand—that’s the only change in clause 16—is being rammed through Parliament under urgency. Now, there isn’t any record of any of our registered political parties ever having anybody live overseas, so the idea that we’ve got to ram through Parliament a bill which we only saw less than 24 hours ago because there’s this great concern about foreigners becoming secretaries of political parties is a pretty extraordinary measure. It is quite silly that Parliament is being asked to rush through such a minor, small change that poses such little risk, albeit a measure that the select committee, in hearing submissions, was very open and supportive of—making that very minor change.

I do draw attention to the committee the contribution from the New Zealand First Minister Tracey Martin, who made the point that party secretaries are volunteers and they need to be respected—those that volunteer in political parties—and we on this side of the committee agree with that. What I find extraordinary is that while we want to respect the role of party secretaries, we have the New Zealand First leader’s lawyer, Mr Brian Henry, threatening to sue the party secretary and office holders of New Zealand First. Is the reason that the Government wants to make sure they are in New Zealand so that New Zealand First is able to silence and penalise those office holders that are blowing the whistle on the financial mispractice that has been going on within New Zealand First?

It was interesting that in the former debate, the Government, the Deputy Prime Minister, objected to the tabling of a letter from office holders of the New Zealand First Party who want to appear before the select committee—in a protected environment, where they enjoy parliamentary privilege—because they are so fearful of the legal action that has been threatened by Mr Peters and by Mr Brian Henry for them disclosing the moral issues that have gone on within New Zealand First. I would ask the Minister in the chair, the Hon Andrew Little, whether the motivation for the change in clause 16 being done in a rush is because New Zealand First wants to be able to ensure it can sue and take legal action against those former New Zealand First office holders, the president and the treasurer, who have recently resigned because of financial mismanagement within that party. [Interruption] I’m sorry?

💬 Darroch Ball: I said get your facts straight.

Well, the president of the New Zealand First Party has resigned. You had to elect a new one at the election. He resigned because he says there were moral issues over the finances of New Zealand First. He said he could not explain the secret $500,000 of donations that went to the foundation. He has said on the public record that he was unaware of the $340,000 of anonymous donations to New Zealand First at the last election—

💬 Darroch Ball: When did he say that?

—10 times than any other—

💬 Darroch Ball: When did he say that?

And he has also said, in response to the interjections from the New Zealand First member, that he resigned because he could not, for moral reasons, sign off on the financial accounts of New Zealand First. I draw to that member’s attention that the New Zealand First Party was the only party not to declare any donations at the 2017 election—extraordinary for a party that played the pivotal role in determining the outcome of that election. I’d invite the member who’s interjecting to get to his feet. I know the country would love to know whether he disagrees with the former party president. I know the country would love to know whether—

CHAIRPERSON (Hon Anne Tolley): I would like to know how that relates to Part 2.

Well, this clause here is all about the party secretary, and about party office holders.

CHAIRPERSON (Hon Anne Tolley): That’s right. I understand that.

And it is about changing them and saying they must live in New Zealand. My concern: I’d like to hear from the Minister as to whether the reason for requiring them to live in New Zealand is so that Brian Henry and Winston Peters can carry out their threat of suing those office holders, whereas if they lived outside the new jurisdiction—and I’d love to know from the Minister why on earth it’s necessary to rush under urgency, in 24 hours, in what has been described as terrible lawmaking, a provision around that provision.

The second provision in Part 2 of this bill deals with the issues of electoral advertisements and modern media, and it’s quite a sensible provision. What it is saying is that the rules that apply to a newspaper or a television or a newspaper advertisement should equally apply to social media. It is quite appropriate that we update our electoral law to bring it into the social media and internet environment of advertising. But the problem I have with it is this: why is it necessary to ram this through in just 24 hours? What opportunity has there been for people to submit on that? My bigger concern is that there are many other provisions within the Electoral Act that are not up to date with the internet age, with the age of social media; why are we solely picking out this particular provision and rushing it through under urgency? Why do we not, in fact, ensure that we make all of the changes that are necessary to our Electoral Act to take into account the internet and social media advertising provisions? I’d love the Minister to respond to those two points.

Thank you, Madam Chair. Turning to Part 2 and looking a bit more deeply at the meaning of “party secretary” under clause 16, and again it is changing the Electoral Act itself. It seems to me that a few questions would be helpfully answered by the Minister of Justice, answers which we might well have gained or be expected to gain during a select committee process. So if any of them sort of seem a little bit mundane, or perhaps in the nature of items that I could be expected to have known, or be able to cross-reference, or to ask our excellent officials in this space then I simply, respectfully, refer you to the fact that we’ve had a process whereby there’s been so little opportunity for that kind of scrutiny of the bill until this point, such that it’s now still, even at this relatively late stage, the committee of the whole House stage, less than 24 hours since some of us learnt even of the existence of the bill, let alone have a chance to read and understand it.

So looking at the definition of “party secretary” or “secretary”, or the meaning of it, in new section 3EA—echo, alpha—we’re talking about a person who, in relation to a party, is responsible for the administration and correspondence of the party. My question to the Minister is what does that mean in the context of a party, which, inevitably I’d say in any reasonably sized party or any unreasonably sized party either, for that matter, might well have more than one person who’s responsible for administration and correspondence. I do acknowledge that there are provisions there that are pointed to in terms of the designation of that. I’m not fully aware of all those meanings. I must admit I haven’t had a chance within the limited time available to look through those.

What I’m really seeking from the Minister is an assurance that the meaning of the “party secretary” is such that we could have a situation where if more than one person was carrying out that function of administration and correspondence that they would be caught by the terms of the Act, because I suspect that’s the intention. I suspect that the function of the Act is intended to, in this case, point to the need for him or her to be living in New Zealand. But with the phrasing of this particular bill very much in the singular, it’s not clear to me that it would be possible that you’d have co - party secretaries, perhaps, in the same way that the Green Party has co-leaders. So that’s a possibility that I’d be grateful if the Minister would be able to clear up.

The second is really the substance of the amendment regarding the party secretary, which is a new requirement that they must live in New Zealand. That raises a number of interesting questions as well: for example, is it possible to have a non - New Zealand citizen who is performing this function but living in New Zealand at the time? The converse of that, so to speak, would be a New Zealand citizen who was living overseas at the time but not able to fulfil the role of a party secretary. That seems a bit anomalous with the way that we’ve got the overseas aspect of an overseas person elsewhere in the same bill.

There we’re talking about it being OK to be a New Zealander, or technically a non - overseas person, either because you’re, essentially, legitimately part of New Zealand’s democratic purposes, albeit that you’re living overseas at the time, or you can be someone who might generally be regarded as foreign, in sort of a pretty loose sense of that word, but based in New Zealand. So I don’t know why a different approach has been taken in relation to a party secretary in terms of where they are physically living at the time. Then the obvious question becomes, as well: well, what does it mean to live in New Zealand? Do they have had to live for a minimum sort of qualifying period?

Perhaps we could borrow the language from other statutes on the book, to be ordinarily resident—for example, a certain number of days per year; those kinds of mechanisms. They exist elsewhere in the law. It would not be hard to fit them in there. And again, I’d be happy to work with the Minister and anyone else on the other side of the Chamber who’d be prepared to add a bit of clarity in the law which does not currently exist, and for reasons that, as discussed in terms of process, we haven’t had the chance to sort of patch up or tidy up until this point.

Moving to clause 17 now, again within Part 2, really this is an interesting one about electoral advertisements. What we’re talking about is a person who’s not able to publish various kinds of advertisements without specifying their name and so on. That’s fine as far as it goes. But I’m wondering about the phrase “permit to be published”, in particular, whether this is going to capture the social media companies themselves. So it’s not just a candidate for an election, for example, it might be myself duly re-elected as the National Party candidate for Helensville, and if I can continue with that train of thought. [Bell rung] As well as continue as the National Party candidate for Helensville then I’d simply point out that we’ve got an interesting little point raised by the law.

We were talking about a person who can’t, essentially, publish something without demonstrating their true name or their address. But you could argue very readily, and I think quite reasonably, that a platform like Facebook or Instagram or Twitter or any of those other social media entities or perhaps some other online portal actually, arguably, is permitting to be published such an advertisement. So my question to the Minister, and no doubt his excellent officials who are standing by for such questions, I expect, is whether such social media companies and other publishers, if we regard them as publishers and not merely platforms, will be caught by that definition and whether or not the Minister intends that to be so; then the technical advice about whether that is, in fact, something that the law is able to achieve mechanically by those words.

The remainder of that clause is around the requirements for the person who is doing the publishing. So we need to know their true name; that’s a reasonably intriguing phrase. I don’t know what the true name of a person might be as distinct from an untrue name or a false name. I wonder if that means a person who has changed their name, perhaps, legally—it might be by deed poll—or is generally known by another name for whatever reason. Whatever change in their lifestyle or other circumstances might dictate that they might want to go under a different name—perfectly legitimate reasons that a person might do that.

So I wonder if that’s what the Minister is intending by having the true name of the person as the test for what they’ve got to publish in terms of identifying themselves, because I’m not sure that that’s the best expression of that, just to sort of suggest that someone could have a true name or an untrue name or a false name. So perhaps a legal name or a name by which they can be readily identified or associated, which would surely be sort of the purpose behind the legislation, given that what we’re looking at, I suspect, is ensuring that people who are publishing ads in the online space as well as in more general kinds of ways, can be captured by the intent of the legislation, which has a certain amount of transparency about who exactly is putting up what on Facebook or online and the like.

Then the final point in relation to that, and again I sort of make it as a point but intend it as a question, is around the person’s place of residence or business, so the address for that has to be published. I wonder if the Minister would contemplate having a test equivalent to those for authorisation statements where it’s something along the lines—and forgive me if I don’t get the wording exactly correct—that it’s an address at which the person might reasonably be expected to be found. I’m sort of looking over in the direction of the officials as well as the Minister as I say that. I don’t know if that’s something they contemplated. It might be that there’s very good reasons that they haven’t gone with that, and it would be good to know those reasons if so.

These are the kinds of questions. Of course I don’t wish to labour the point too much but with a new person in the chair I’d probably get away with it.

CHAIRPERSON (Hon Ruth Dyson): Nope.

No? She’s shaking her head. She’s been watching, unfortunately. Well, there go my next two contributions.

But in any case, the point really was, and it is actually a serious one, that they’re asking these questions now because it’s the committee of the whole House stage and this is the appropriate time or one of the appropriate times, normally, for being able to sort of interrogate this level of detail, interrogate even the Minister, if we can sort of put it like that, and understand that. Normally, the other opportunity to do that would be in the select committee process. We could sort of embarrass ourselves with our lack of knowledge and perhaps silly questions, although, you know, famously there’s no such thing as a silly question, but for anyone who’s attended the Justice Committee there is such a thing as a silly question.

And so it is that I’d love the Minister to respond with answers to those two key points. One is about the party secretary, which I suppose, in turn, has two parts: who’s responsible for the administration of correspondence, could that be more than one person in relation to a particular party; and, second, what does it mean that they must live in New Zealand. Then the other point, really the key one in relation to the electoral advertisements, was whether the likes of Facebook, but again other entities too that publish or allow themselves to publish, “cause or permit to be published” even in the wording of the law, are they captured by that intention to, essentially, create an offence whereby someone can’t do that without publishing name and address details.

Thank you, Madam Chair, and I thank the members who have spoken so far on this part of the bill. I will seek to attempt to answer their questions. I’ll start with the contribution by the Hon Dr Nick Smith, whose central question was: why haven’t other changes been made? And, look, I could say, “Well, that’s a bit rich, because in nine years nothing changed.”, but the reason is because this is a bill that seeks to deal with the obvious and now increasingly—the increasing clear risk of foreign interference and undue foreign influence in our political system. So I’m pleased to hear that that member supports the extension of the requirement to put promoter statements on all forms of advertising, including those on social media and online advertising, but this has not been a time for a thoroughgoing, comprehensive review of the Electoral Act. That does need to happen, and I’m confident that that will happen, but that is not the objective of this piece of legislation. It is very discrete, it is very confined, and that’s why it is the way that it is.

To Chris Penk’s usual, always very interesting contributions—I disagree with him that there is any such thing as a dumb question; there are no dumb questions. He knows that, and his contributions keep Ministers in the chair on their toes, which is the role of the committee of the whole House stage, mostly. So to deal with the definition of “party secretary”—really, I understand the question to be: is the role divisible? If you have a look at the drafting of that clause 16, which refers to other parts of the Electoral Act which make references to the party secretary, those provisions referred to in that clause 16 and the new section 3EA—so the current sections 63(2)(c)(iii) or 63(2)(c)(iv)—that refers to the person named on the application to register the party; that is the party secretary. In section 67(3)(c), it is the person notified to the Electoral Commission as appointed to the position of secretary. Then in section 67AA(2), that provides that if there is a vacancy in the position of party secretary another person must be appointed. So the scheme of the Act already says there must be this person designated as party secretary. It is that person—and all that that provision adds is that the person must live in New Zealand.

Which brings us, neatly, to the next question that the member posed, which was: what does live in New Zealand mean? Well, there is not a residential requirement, nor even a citizenship requirement. It simply means that the person must be in New Zealand and living—to live in New Zealand, clearly, there has to be some sort of authority to do so. I’m attempting to say the person has to be in New Zealand and not dead. I mean, that would be an accurate interpretation and definition of it, and that would be a useful start, but, actually, I think it is very clear the person must be located in New Zealand, discharging the responsibilities of this person designated, for statutory purposes, as the party secretary.

The next question that that member asked was in relation to clause 17 and “permit to be published”. I simply say to the member: that is just the language already used in the Electoral Act and we’re not seeking, because of the circumstances in which this legislation is in the House, to make any other changes or craft up any other kind of drafting that will have an impact on the rest of the Electoral Act. We are drafting this bill in a way that is consistent with the rest of the Act, and that explains that one.

Penultimately, the member asked about the true name. Now, that is simply, you know, ensuring that aliases are not used. You could not use “Daddy Thicc Snacc”, for example, in the promoter statement. It would have to be the name of the person, if you like, as recognised in the register of births, deaths, and marriages, of whatever country the person may have originated from, including New Zealand. But it must be the recognised name for official purposes.

Finally, the member asks whether the reference to—I think in clause 17, proposed new section 221A(1)(b)—the person’s place of residence or business should be changed to be an address where the person might be reasonably expected to be found. Again, we don’t have that form of words in any other place where the person is expected to provide an address, and that, I think, answers all the questions posed so far.

Part 2 agreed to.

Clauses 1 to 3