Finlayson Christopher: Electoral Finance Bill — In Committee 
Finlayson Christopher: Electoral Finance Bill — In Committee 
[Volume:644;Page:13607] 
CHRISTOPHER FINLAYSON (National) 
: 
 I will make a couple of comments about a very important clause in Part 3 namely clause 119 which deals with the liability of candidates party secretaries and third parties. Given the fate of Part 2A the new part I put forward I just want to say very briefly that I express my disappointment with the quality of the certificate provided by the Minister of Finance under Standing Order 319 when that part was ruled out. Members will recall that Part 2A was a proposal that there be appointed a chief electoral prosecutor. I remember the last time the late Justice Ellis a fine judge of this land appeared before the Justice and Electoral Committee in his capacity as the chair of the Electoral Commission. I asked him whether given the problems that had occurred over the 2005 general election it was more appropriate to have prosecutions pursued by an independent prosecutor rather than the police and he said he thought that was indeed correct. 
When I prepared Part 2A it was not for some silly shallow party-political purpose but to pick up on the recommendation of Justice Ellis and I do not think that the certificate does justice to Part 2A as I drafted it. In the first instance it says that the operating balance impact would be $2 million to $3 million per annum and then there are the weasel words at the bottom that “without knowing the exact numbers of staff” and so on the “costings are a very high-level estimate.” Indeed they are because the figures are based on the costs of the Police Complaints Authority—which is the wrong name for it anyway—and the Office of the Privacy Commissioner which comprise around 15 and 30 fulltime-equivalents respectively. So what was contained in the certificate was rubbish and was a grossly inflated estimate of what it realistically would cost to have a chief electoral prosecutor who would be a specialist in electoral law unlike the police and would be a far more effective operator than the police who seem to read reports interview a few people and then do nothing. But there we have it. Once again the Government has missed an opportunity. It seems to be very adept at that—in fact it never misses an opportunity to miss an opportunity. 
Now let me look at clause 119 which is a very important clause because it deals with the liability of candidates party secretaries and third parties. Members of course will have read it. What is National seeking to do in the amendment to clause 119? We want to ensure that parties themselves and not just their financial agents are in the gun for offences that may be committed. Indeed there is no good reason why political parties should still retain an effective immunity from prosecution. It seems to me totally unfair for a single person say Mr Mike Smith or his equivalent in other parties to carry all the liability for a large organisation like a mainstream political party where decisions are made by groups of people or in the case of the Labour Party by Heather Simpson. After the previous election as we well know the police found a prima facie case against Heather Simpson related to the failure to authorise the pledge card but they declined to prosecute on the basis that one person should not be liable for a group mistake. Labour has simply failed to reflect this in the bill. 
What does my amendment to clause 119 do? It deals with interesting issues of execution—execution of process or enforcement of judgments or fines. It deals with the issue of who may be sued. It deals with what is to happen if a financial agent or party secretary dies resigns or is removed and it deals with the difficult issue of service of process on a financial agent or party secretary. These provisions are very sensible in tying in a political party so that the individual financial agent or party secretary is not carrying the can. It deals with an interesting legal point in that although parties are registered under the Electoral Act both the National Party and the Labour Party are unincorporated. I can recall that many years ago I was involved in a case where we had to sue the Heretaunga branch as it then was of the Labour Party over Bill Jeffries’ selection. We had a great deal of difficulty working out exactly who to serve. We eventually found someone and the challenge to Bill Jeffries’ nomination failed. But I think the only political party that in fact has been registered in recent times is the Social Credit Political League which was an incorporated society. So the issue arises that if one is going to sue an unincorporated association like the National Party or the Labour Party how exactly does one do it? What we have said in the proposed subclause (5) is that where legal proceedings are commenced under this Act a party may also be sued as defendant in the name of the party secretary or financial agent “on behalf of the party”. So too there can be difficult questions about how one levies execution against an unincorporated association. 
What we have provided for in proposed subclause (4) is that where a fine is imposed on a party secretary or financial agent then there can be enforcement of that fine in the same manner as if the party were a body corporate and as if all the property that is vested in the party secretary or financial agent were vested in the party. So assuming for example that the Labour Party is found guilty of corrupt activity or the general secretary Mr Smith is found liable for corrupt behaviour then the assets of the Labour Party as the Labour Party can be sequestered. That is what subclause (4) is about. 
Proposed subclause (5) is very important because what happens if a party secretary or financial agent dies after the commencement of proceedings and there is a prosecution against that person for an illegal or corrupt activity? Does the prosecution abate or in circumstances where the party secretary has been acting as the voice and the face of the Labour Party or the National Party should the Labour Party or the National Party have to front up in court? That is what we are saying there—that no legal proceeding will be discontinued merely by the death resignation or removal from office of the party secretary or financial agent. 
Then the next point is how exactly one serves? As I said in the case of my experience with the recalcitrants who wanted to have a go at the Heretaunga branch of the Labour Party serving unincorporated associations can be difficult. What does one do if the party secretary or financial agent has gone to ground or gone to Bermuda? How exactly does one serve that person? Then proposed subclause (7) says quite straightforwardly one leaves a true copy of the summons or writ or whatever other process one is talking about at the place of business of the party. So that is what proposed subclause (7) is about. The Minister said that there were references in that subclause to interested parties and third parties. That is in fact wrong; there is nothing of the sort. It is a very narrow clause that seeks to build on the provisions of clause 119 dealing with the liability of candidates party secretaries and third parties and it is to deal with the position of the party. 
Again in summary it says that a political party has to bear some of the responsibility. It should not be left to the party secretary or the financial agent and for that reason I say that it is a very sensible provision—that is clause 119 proposed subclauses (4) to (8)—in legislation where there is very little common sense and I would commend to the Minister the excellent amendment even though it is late in the day when dealing with the Committee stage of the bill because it is not too late to insert those.