NEWS ON POLICY AND POLITICS
6 August, 2007

Watching Brief is a regular publication from Russell McVeagh on developments in public law and policy of interest to New Zealand business.

www.russellmcveagh.com

IN POLITICS

A matter of opinion...

The Electoral Finance Bill - A Counter To "Undue Influence" Or An Attack On Democracy?
Thoughts of utu may have been nursed in the darker watches by some government MPs aggrieved by hostile campaigning, but the more general and genuine feeling on the part of most was that the democratic process was being undermined by the "undue influence of wealth". more...

Political Management Not Alignment
The resignation of Environment and Social Development Minister, David Benson-Pope, has done more than focus public attention on political economy with the truth. It has also cast a spotlight - as well as doubts - on the integrity and neutrality of the public service. more ...

IN OTHER NEWS

Benson-Pope Departure Makes Room For Fresh Faces
The silver lining in the departure of former Minister, David Benson-Pope, is the opportunity it affords the Prime Minister to rejuvenate her Cabinet. more ...

IN PARLIAMENT

Bills Introduced more...

At Select Committee

Open for submissions more...
Submissions closed more...

Committee Hearings of Note more...

Bills Reported Back/Awaiting Second Reading more...

Bills Passed Second Reading

Minimum Wage (Abolition of Age Discrimination) Amendment Bill more...

Supplementary Order Papers more...

Bills Passed more...

Regulations more...

LEGISLATION IN THE WINGS more...

IN CONSULTATION more...

A matter of opinion...

The Electoral Finance Bill - A Counter To "Undue Influence" or an Attack on Democracy?

In the aftermath of the 2005 general election, more than one Labour MP attributed the reversal in their electoral fortunes to the advent of 'big money' campaigning by hostile interests. The accompanying sense of grievance was palpable and only given an edge by revelations of the ill-judged political machinations of the Brethren.

Whilst thoughts of utu may have been nursed in the darker watches by some, the more general and quite genuine feeling on the part of most MPs was that the democratic process was being undermined by the "undue influence of wealth".

No surprise then that one of the express objectives of the recently tabled Electoral Finance Bill is to counter that influence. Even less of a surprise is the fact that 'third party' campaigning is the area most vigorously addressed, the most salient innovation being the imposition of a $60,000 spending limit on third party political campaigning with a year of a general election.

The effort in the Bill to bring greater transparency to the funding of political parties is feeble by contrast. Also notable is the Bill's failure to address the use of policy promotion as a relatively unregulated proxy for political advertising by the government of the day.

Taken as a whole, the effect of the Bill is to force private political donations into the established political parties and the somewhat more flexible regulatory regime that, governs them. From one perspective that's an entirely reasonable proposition and the suggestion of less benign motivations on the part of Labour is unjustified.

However, regardless of the underlying motives there is no getting away from the fact that the legislation seeks to place active constraints on any person or persons not working from within a political party. The working assumption is that politics is exclusively owned and mediated by political parties. Under this formulation, lobby groups - industry, trade union, religious or otherwise - and individuals are all disempowered in favour of whatever lowest common denominator position can be negotiated with the anonymous men and women in cardies who control the development of policy within the established political structure.

The violence that this does to the Bill of Rights and freedom of expression is inescapable. It is not, as Crown Law Office advice to the Attorney-General suggests (www.justice.govt.nz/bill-of-rights/bill-list-2007/e-bill/electoral-finance-bill.html), a finely balanced issue at all and that perspective will doubtless receive prominence as the Bill makes its way through the House.

This is something that Labour will not welcome given the now very limited window it has for rebuilding its credibility with the electorate.

Political Management Not Alignment

The resignation of Environment and Social Development Minister, David Benson-Pope, has done more than focus public attention on political economy with the truth. It has also cast a spotlight - as well as doubts - on the integrity and neutrality of the public service.

The handling of the Setchell affair by Environment Chief Executive Dr Hugh Logan is now the subject of an inquiry by the State Services Commission. What the outcome of that will be cannot and should not be pre-judged. It is sufficient, however, to note the disquiet felt by many senior civil servants at the perception the affair has created of a politically compliant - if not politically aligned - public service.

A politically neutral public service is a cornerstone of the Westminster system of government to which we are heir. Officials are to provide 'free and frank advice' that helps inform government policy development. That policy having been decided, it is then the role of those officials to implement faithfully government wishes, whether they like them or not.

The working presumption behind all this is that officials will conduct themselves in a way that ensures they enjoy the confidence of any government - including the government-in-waiting twiddling its thumbs on the opposition benches.

Over recent years and successive administrations both this presumption and the confidence it is intended to engender have come under strain. The suggestion that policy advice is being tailored to a Ministers' political preferences and the disdain sometimes shown for those whose unfettered advice is not to a Minister's liking, have done little to bolster state sector professionalism. The Deputy Prime Minister's characterisation of unpalatable policy advice from officials as a form of "Nuremburg defence" is also telling, not least for its suggestion that public servants should join Ministers in shouldering responsibility for what in the end are political decisions.

However, the failure by some Ministers to distinguish between political and administrative responsibility is not the only source of the emerging malaise within the sector. For a start, the interface between Ministers and their state service chief executives is inherently charged. Political imperatives and the demands of responsible public administration are not the easiest of bed-fellows and they can and do come into conflict. Many a seasoned Chief Executive has found him/herself nervously trying to judge when and how best to utter those fateful words, "No, Minister".

But while the political-professional dynamic is a perennial problem and Ministerial attitudes are ever a consideration, public servants are not blameless in the perceived weakening of the standards of a professional civil service. The belief that effective political management is achieved by telling Ministers what they want to hear (or what officials think they want to hear) may not be universal, but it is prevalent. So too is the view that the best way of building Ministerial confidence is by being political.

In a world where senior civil servants are chosen politically and that choice is transparent 'being political' is not a problem. That is the situation in the United States and there the mass divestiture of office that accompanies any change of regime is as routine as it is unremarked. However, the United States also has a critical mass of capability upon which it can draw, as well as a multitude of think-tanks within which future political appointees can bide their time. These are luxuries New Zealand does not enjoy. A politically based system of appointments is resource intensive and the bottom line is that we simply do not have the internal capacity to support it, even if we were comfortable with the idea of three or four layers of political appointees between a Minister and the professional public servant upon whom all eventually turns.

As matters currently stand, the Setchell affair will not be seen as doing anyone a favour. However, in retrospect it may be that it has delivered a necessary and, in the end, desirable wake-up call for a sector that the public may consider to have lost its way.

Benson-Pope Departure Makes Room for Fresh Faces

The silver lining in the departure of former Minister David Benson-Pope is the opportunity it affords the Prime Minister to rejuvenate her Cabinet. First term MPs, Shane Jones and Maryan Street, have long been touted as worthy candidates for promotion. Darren Hughes is also being pushed, as is lawyer Charles Chauvel.

Within the existing Cabinet ranks, Clayton Cosgrove has burnished his credentials sufficiently for promotion and David Parker is already marked for greater prominence with his appointment to nurse-maid the Environment portfolio until Clarke's reshuffle is announced.

The timing of that is not clear. Scuttlebutt suggests a date late this year rather than the February/March option that was being touted before Benson-Pope's political demise.

Bills Introduced

Electoral Finance Bill
Government Bill. Hon Mark Burton
This Bill creates a stand-alone Act (the Electoral Finance Act) to provide more transparency and accountability in the democratic process, to prevent the undue influence of wealth, and promote participation in parliamentary democracy.

Public Works (Offer Back of and Compensation for Acquired Land) Amendment
Member's Bill. Te Ururoa Flavell
This Bill is intended to ensure that former owners of Māori or general land taken or acquired by the Crown for the purposes of a public work are given the first right of refusal to purchase that land where the Crown no longer requires it for the public work for which it was originally taken and/or acquired. The Bill also provides for solatium payments to be made for loss of land and/or opportunities associated with the use of that land where land was acquired or alienated for a public works use for which it was not actually used. Where the former owners of the land are deceased, these rights may be exercised by their descendants.

At Select Committee

Open For Submissions

Submissions Closed

Committee Hearings Of Note

The Health Select Committee has continued to consider the two human tissue Bills, and the Health (Drinking Water) Amendment Bill.

The Justice and Electoral Select Committee has heard further evidence on the Principles of the Treaty of Waitangi Deletion Bill (a private members' Bill sponsored by New Zealand First). Almost all submitters are expressing opposition to this Bill.

Bills Reported Back / Awaiting Second Reading

Aviation Security Legislation Bill
Copyright (New Technologies and Performers' Rights) Amendment Bill
Employment Relations (Flexible Working Hours) Amendment Bill
Income Tax Bill
Official Information (Openness of District Health Boards New Zealand) Amendment Bill

Bills Passed Second Reading

Minimum Wage (Abolition of Age Discrimination) Amendment Bill

Supplementary Order Papers

SOP 129: Wills Bill
Member in Charge: Hon Clayton Cosgrove
Substantive Amendment
This SOP:

• extends the Wills Bill's commencement date to 1 November 2007;
• allows members of the Armed Forces to make formal wills, even if they are under 18 years, if they are at sea or informal wills if they are at sea; and
• amends minor errors.

Bills Passed

Bail Amendment Bill
Criminal Justice Reform Bill
Parole Amendment Bill (No 2)
Prisoners' and Victims' Claims Amendment Bill
Sentencing Amendment Bill (No 3)
Sentencing Council Bill

Regulations

Securities Act (Overseas Employee Share Purchase Schemes) Exemption Amendment Notice (No 3) 2007
Takeovers Code (Life Pharmacy Limited) Exemption Notice 2007
Securities Act (Belgrave First Management Limited and Covenant Trustee Company Limited) Exemption Amendment Notice 2007
Submarine Cables and Pipelines Protection (Tui Area Development) Order 2007
Infectious and Notifiable Diseases Order 2007
Health Entitlement Cards Amendment Regulations (No 2) 2007
Evidence Regulations 2007
District Courts Amendment Rules 2007
High Court Amendment Rules 2007
High Court Fees Amendment Regulations 2007
High Court Amendment Rules (No 2) 2007
Social Security (SuperGold Card) Regulations 2007
Income Tax (Deemed Rate of Return, 2006-07 Income Year) Regulations 2007

Cabinet has recently signed off on policy for a new Bill on limitation defences and civil proceedings.

The Prime Minister has announced two additional Bills for introduction:

• a dairy industry restructuring Bill which deals with export restrictions and licenses in regulated dairy export markets; and
• a broadcasting amendment which modernises legislation for the funding bodies NZ on Air and Te Mangai Paho around new forms of content.

What's New

Current

Links

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