O'Rourke Denis: Local Electoral Amendment Bill (No 2) — Second Reading 
Text is incorporated into the Bound Volume 
O'Rourke Denis: Local Electoral Amendment Bill (No 2) — Second Reading 
[Sitting date: 20 March 2013. Volume:688;Page:8769. Text is incorporated into the Bound Volume.] 
DENIS O’ROURKE (NZ First) 
: 
 This bill the Local Electoral Amendment Bill (No 2) should probably be renamed the “John Banks Problem Avoidance Bill” because that is a big part of it. The other main provisions of the bill amend the Local Electoral Act 2001 to improve consistency with the Electoral Act 1993 regarding electoral donations and expenses limit the amount or value of anonymous donations refine the definition of “anonymous” and “donation” enhance the obligations of candidates for the disclosure reporting and recording of electoral donations—something I think Mr Banks should note very well if he can remember to do so—and introduce penalties for non-compliance. But as I will say later it does fail to address some important issues and a previous speaker has mentioned some of those. 
Something else that the bill does do in clause 15 is require that a candidate profile statement include whether or not the candidate’s principle place of residence is in the local government area in question. That is something that people have wanted to see for quite a long time. The word “area” means a ward or a similar division within a local council’s boundaries. It does not preclude of course a candidate from standing if living outside the area and it does not preclude him or her stating what connections he or she has with the area. In fact it would encourage people with a connection other than residence to make it clear why they should be elected to represent the area in question. Of course some people who do live within the area may in fact have been there a very short time and not have a genuine connection with it. Voters will need to be aware that just living within an area is not necessarily a genuine longstanding connection with it. 
But the most important new provisions concern anonymous donations. This has been the source of continuing problems as we know—especially John Banks’ issues with claimed anonymous donations to his last Auckland mayoralty campaign. As a result there is widespread concern about what appears to have taken place concerning Mr Banks’ return and anonymous donations. The bill contains several new sections about donations. We now have a new definition of what an “electoral donation” is in new section 103A inserted by clause 27. This section clarifies what goods and services are to be included and establishes a threshold of $300 for the purpose. It excludes labour provided free of charge as of course it must. The Justice and Electoral Committee has recommended another provision in schedule 1 requiring candidates to disclose a return of electoral donations and expenses for each office for which the candidate has stood in the election and also that the candidate should be required to specify the campaign to which an anonymous donation of over $1500 was designated. 
The bill as introduced does not specify any particular limitation period for prosecuting offences under the Act. Because the offences of filing a false return and arranging to circumvent the $1500 limit on anonymous donations involve elements of fraud and dishonesty a relatively long time frame for investigation and prosecution is needed. The select committee has therefore recommended amending clause 36 by adding a new section 138AA that specifies the time frame for prosecuting the new offences in new sections 112D and 103I as 6 months from the date on which the prosecutor is satisfied that there is sufficient evidence to warrant the commencement of proceedings but of course no later than 3 years after the offence was committed. 
The Banks situation demonstrates why that time frame in needed. Concerning the John Banks problem—at least the one we can address is this bill—the bill does address the one matter that John Banks’ electoral return for the 2010 local body elections has highlighted. It has revealed a gap in the existing legislation allowing persons acting for candidates to call donations anonymous that they did know or ought to have known were not in fact anonymous donations. Clause 27 inserts new section 103F which says: “If any person involved in the administration of the affairs of a candidate in relation to his or her election campaign knows the identity of the donor of an anonymous donation exceeding $1500 the person must disclose the identity of the donor to the candidate.” I do worry a little that it will be necessary to prove actual knowledge under that section which may be difficult and that perhaps the words “or ought to have known” should also have been included but the select committee did not agree with me on that. Nevertheless this is a satisfactory new provision which will help solve the “Banks problem” as I think of it. 
 The bill also provides in new section 103H inserted by clause 27 that an anonymous donation may not exceed $1500 and that “(1) If an anonymous donation exceeding $1500 is received by a candidate in relation to an election campaign the candidate must within 20 working days of receiving the donation pay to the electoral officer responsible for the conduct of the election to which that campaign relates the amount of the donation or its value less $1500.” Section 103H(2) also states: “If an anonymous donation exceeding $1500 is received by a candidate who is seeking election to more than 1 office the candidate must—(a) designate 1 election campaign for election to 1 office for which the donation will be used;”. 
Section 103I provides for offences relating to contravention of section 103H and it says that “A person who enters into an agreement arrangement or understanding with any other person that has the effect of circumventing section 103H(1) or (2) commits an offence and is liable on conviction to a fine not exceeding $5000.” and that a candidate who contravenes the section would also commit an offence and be liable to a similar fine. So that is a good step forward. It does help solve I think the Banks problem. 
The bill provides for postponement of a local election. I note that the Green Party has expressed concern about the new powers given to the Minister of Local Government to adjourn elections in the case of natural disasters and other such emergencies. The bill would allow the whole election to be postponed by Order in Council by up to 6 weeks at the discretion of the Minister. The Greens’ concern is that it gives the Minister excessive powers but I note that new section 73A(6) in clause 21 says: “Before recommending the making of the Order in Council the Minister—(a) must be satisfied on reasonable grounds that the order is necessary to ensure that the adverse effects of an emergency (whether local or national) or of anything referred to in section 73(1)(a) to (d) do not deny electors a reasonable opportunity to cast a valid vote nominate a candidate or accept nomination as a candidate in relation to the election; and (b) must have consulted every local authority and electoral officer that will be affected.” So I think that section 73A(6) does sufficiently limit the Minister’s discretion about postponement and would preclude the sort of Environment Canterbury situation that the Greens seem to be most concerned about. 
There is however one very serious defect in the bill—and it is the one mentioned by other speakers—and that is the gap concerning third-party campaigners being able to receive donations and to promote a candidate without that candidate’s permission. There has not been time to address that so far but I do trust that before this bill comes into force the Government will see that that matter is addressed and is included in the legislation. Overall the bill is a good one and does deserve support but I note that there it is still work in progress. It is a shame that that work has not been done already. However assuming that it will be New Zealand First will be happy to continue to support the bill as amended by the select committee.