Wilkinson Kate: Electoral Finance Bill — In Committee 
Wilkinson Kate: Electoral Finance Bill — In Committee 
[Volume:644;Page:13617] 
KATE WILKINSON (National) 
: 
 I will confine my address to clause 120 “Providing money for illegal purposes”. It is another example of the legal minefield being created by this hasty and ill-considered legislation because this clause provides: “Where any person knowingly provides money for any purpose which is contrary to the provisions of this Act … that person is guilty of an illegal practice.” The consequence of being found guilty of an illegal practice is a fine of up to $40000 for a person who is a financial agent or a party secretary or $10000 for any other person. 
However the difficulty with this clause which was pointed out by the Law Society—whose advice was again ignored because this Government thinks it knows best—is that the person will always knowingly provide money if he or she is providing money. The clause as drafted has as the offence to knowingly provide money but surely the whole point of the clause is whether the money is provided by a person who knew it was for an illegal purpose. It is knowing the money is to be used for a purpose contrary to the legislation that is the important point here not that the person knowingly provides the money. 
As the Law Society quite clearly stated the person will always know that he or she provided the money. What needs to be provided presumably is that that person knew that it was for a purpose contrary to the provisions of the legislation. Accordingly the word “knowingly” is misplaced. It is simply sloppy sloppy incompetent drafting. The provision should read: “Where a person provides money for any purpose that the person knows is contrary to the provisions of this Act …”. However even that will not catch a large number of people who will not read this legislation in detail. If the Minister cannot understand the legislation if the Electoral Commission cannot understand the legislation and if Parliament cannot understand the legislation then how can a layperson be expected to read the legislation to understand it and to know whether what he or she is doing is actually for an illegal purpose? 
A further problem I would like to highlight is that where a person incurs an election expense in excess of the cap then he or she is unlikely to have any idea whatsoever whether or when that cap has been exceeded. So this Government puts forward a sneaky wee amendment and removes the word “knowingly” completely. National has an amendment that puts “knowingly” in the right spot but this Government has an amendment that takes out “knowingly” completely. So under this Government’s sneaky little amendment there is now absolutely no intent whatsoever—no mens rea is required. If a person provides money and it turns out that it is used for a purpose contrary to the Act which the person did not even know about then that person risks committing an illegal practice. 
We know that the word “knowingly” was in the wrong place but to take it out completely and not put it back in the right place makes the clause more meaningless. It also makes it unfair and it also makes it unworkable. It is just a sneaky little amendment the likes of which this Government is known for putting forward at the last minute. 
Effectively this clause will prevent any person from providing any money whatsoever because if a person provides money makes a donation then he or she has no control over what is done with that money. He or she has no control over the use of that money and he or she has no knowledge that other moneys have been donated and this donation could suddenly tip the cap and therefore make the donor guilty of an illegal practice. This is a ban on all donations yet this Government has the arrogance to say the bill is not an infringement of human rights or freedom of speech. 
Christopher Finlayson has put forward an amendment to put the word “knowingly” back in the clause where it should be so that the issue is whether the person knew of an illegal purpose rather than whether the person knowingly made the payment. I trust that the Government will vote in favour of this amendment. Then at least if the person actually knows that the purpose for which his or her donation will be used is illegal that person may be caught. That however still does not get over the issue that this assumes that the person will actually be able to understand the bill. We have heard that the Minister does not understand the bill. As I have said we have heard that the Law Society does not understand the bill. The Law Society says the bill is unduly complex and that it is more complex than the original one. We know that the Electoral Commissioner does not understand the bill. So even if Christopher Finlayson’s amendment is passed the person involved must still read the bill understand the bill and know that the purpose will be unlawful. What a test that will be.