Legal Beagle by Graeme Edgeler

In a post shortly before the election, I described how I’d come to change my mind on one of the details of MMP – the one seat rule. At about that time, I began questioning another.

Under our version of MMP, candidates can seek election as both as electorate candidates and list candidates. Not all countries with mixed-member systems allow this.

Dual candidacy is one of the things the Royal Commission gave some thought to, and their reasoning has always seemed pretty good: 

In arriving at our proposal to allow parties free rein over who should appear on the lists, we considered excluding constituency candidates from the list altogether or, alternatively, requiring that all list candidates also contest a constituency seat...

Internal party pressures in West Germany have meant have meant that most list candidates in high positions now also contest and are subsequently identified with local constituencies. This has contributed in West Germany to a general lack of distinction between the two types of representative. It also encourages a low turnover of deputies [GE: Members of Parliament] and a consequent stability and depth of experience within the Bundestag.

These characteristics are, however, not without their disadvantages. A lack of distinction between MPs elected in different ways may promote greater harmony within parties in the House, but it does not encourage list members to concentrate on the representation of interests transcending local constituencies. Moreover, while the backup of a list position allows able representatives in marginal seats to be protected, it consequently givers voters little power to remove an unpopular member from the House.

If list candidates were excluded from contesting constituencies voters would retain the power to remove unsatisfactory local representatives and list members could focus on the representation of wider groups and interests, or on national issues. On examination, however, we consider the prohibition of dual candidacies to be undesirable in principle and unworkable in practice. First, the creation of 2 rigidly distinct types of candidate (and hence representative) would be likely to contribute to party disunity. Second, we see considerable advantage in allowing parties to both protect a limited number of their more valuable MPs in marginal seats and reward superior candidates in unwinnable seats. Banning dual candidacies would prevent such practices and be of particular harm to small parties who are unlikely to be assured of any constituency seats but who nonetheless wish to have their high profile members contest such seats. Third, a smaller party would win more list than constituency seats. This may be reversed if that party does particularly well in an election. Under MMP, therefore, a party may lose some of its list members while gaining seats overall. In our view this is an unacceptable prospect if dual constituency/list candidates are banned.

I have never had a problem with backdoor or zombie MPs: those MPs who return to Parliament as list MPs having been thrown out of an electorate. The highest profile example of such an MP is Winston Peters; in 2005, he was rejected by the voters of Tauranga, but he 'snuck' back into the House at number one on the New Zealand First list.

Except, of course, he didn't sneak at all, and pretty much every one of the 130,115 voters who gave their part votes to New Zealand First in the 2005 election was voting for Winston Peters, so to call it 'sneaking' is dishonest, but there's nothing fundamentally different from the position he was in from those of other former electorate MPs saved by the list.

Historically, former electorate MPs who lost the haven't hung around particularly long, usually serving out the term, or and the ones who have stuck around, aren't generally among those people complain about as backdoor MPs (Winston Peters, Damien O'Connor, and Clayton Cosgrove). People may like to think that electorate MPs are voted out of office because they are personally unpopular, but more often, the electorate vote simply follows the nationwide wing. Sometimes a zombie MP may vastly outperform their party in an electorate, so it is foolish to conlude that their loss is a personal slight (Clayton Cosgrove got almost double the votes of the Labour Party in Waimakariri, for example).

Foremost, I have always considered it fundamentally wrong that a few thousand Tauranga voters should be able to veto the democratic choice of more than 100,000 voters over the whole country. But that's a flawed way of looking at it.

If dual candidacy were prohibited and a candidate like Winston Peters contested an electorate, he would have made the call and he wouldn't also be seeking to represent a broader national constituency via the list, so no voter outside of that electorate would even have the choice: there would be nothing to veto.

Second, I've generally considered that this wasn't a matter for legislation, but a matter for the political market to solve. Yes, it was practically impossible to remove a few people rewarded with high list placings, but people who don't want backdoor MPs can choose to vote for parties which don't place at-risk electorate MPs in winnable spots. If a lacklustre, or protectionist, list is a voter turn-off, parties that don't get the message will suffer at the polls until they do. I still quite like that argument, but it now gets weighed against the new ones :-)

But approaching this from the standpoint that I haven't had a problem with back-door MPs, is a mistake. The question we need to address is whether there would be benefits.

During the referendum campaign, Jordan Williams of the anti-MMP group Vote for Change repeatedly argued that Supplementary Member was a compromise between fully proportional MMP, and the majoritarian, electorate-based, First Past the Post (FPP). The usual response to this argument is that it is in fact MMP which is the compromise: between a fully electorate-based system like FPP and a fully list-based system (such a system is used in most countries with proportional representation); we get a proportional result, but also get the strong local representation missing from systems that rely solely on lists.

That's how the argument goes, anyway. But does our current form of MMP really allow for strong local representation? Jordan's greatest complaint about MMP was that it was unfair that when a party lost an electorate it got an extra list seat (and sometimes even the very same MP). He argued that this meant that parties (and MPs) could ignore the wishes of the middle New Zealanders who make up the marginal electorates.

And I think he's right. The tendency may not be great, but it is a factor. We've never had (under MMP or FPP) the Westminster tradition of crossing the floor (I don't think government backbenchers in New Zealand have ever taken out newspaper advertisements opposing government policy, for example), so the effect might not be as great, but it could manifest itself in other ways. But maybe under first past the post – out of fear of losing their jobs, with no plan B – local MPs in marginal or somewhat marginal electorates were more likely to more forcefully put their constituents' views in caucus, and were able to forestall unpopular changes, or obtain concessions. It certainly seems likely that an MP who, if they lost their electorate, would be out of a job, would take that part of the representative function more seriously.

Indeed, as Jordan argued, the very existence of a process of ranking MPs on a list, whereby the higher they are on the list, they more likely they are to keep their well-paying jobs, is an encouragement to not stand up to party bosses – even for MPs who represent electorates. While there are other ways to counter this effect – and I'll discuss the possibility of “open lists” in a future post – it's worth considering this on its own.

If one of the reasons we favour MMP, over, for example, a solely list-based system, is that it provides “strong local representation”, could we increase the strength of that representation by prohibiting dual candidacy?

As usually happens, there are arguments both ways: by having almost all MPs (including those elected via party lists) contest electorate races, they're all contected to an area, and all can play a role in representing it. It's probably reasonable to conclude that some list-only candidates may never face a meeting of voters, and may lose contact with ordinary voters. Allowing dual candidacy breaks down the “faceless list MP” stereotype: people tend to be less faceless, if they're fronting up to you in meet the candidate meetings.

Of course, this presupposes that list MPs having a geographic connection is even a good thing. One of the benefits of banning dual candidacy could easily be that not only do we get stronger local representation, but we may also get list MPs who can focus more on the broader national constituencies they're supposedly there to represent. If we like MMP because it has both list MPs and electorate MPs, couldn't changing it to strengthen the roles of both be a good thing? A major rationale for a list is that it enables parties to bring into Parliament people with particular knowledge and skills that may best be focused on things other than representing constituents. Prohibiting dual candidacy could have the effect of providing greater encouragement to parties to use the list for its full benefit: with 70 electorates (and rising), Parliament will never be short of the type of MP who is skilled at representing local views, and helping constituents with their problems; there is little reason to use the list to protect people whose strengths lie in this area.

Of course, putting MPs' jobs on the line with their local electorates could bring with it the problem of pork-barrel politics, as MPs would have a greater incentive to try to buy their re-election. However, because only an individual MP's continuation in office rests on that electorate, and not the government's continuation, I suspect this wouldn't be a particularly big problem (especially when compared to first past the post).

A major reason why many support dual candidacy is because it allows the major candidates for the minor parties to contest electorates, when they know they have almost no chance of winning them. It is said that dual candidacy is necessary to allow minor parties to raise their profile and seek the party vote. I don't accept this. You don't have to be an electorate candidate to stand up at a meet the candidates meeting and say “I'm not asking for your electorate vote, I'm asking for your party vote”, and frankly, it would actually make a bit more sense to be asking that when you hasn't actually put your name forward as an electorate candidate. Local newspapers and Rotary Clubs are not prohibited from seeking the views of MPs or others from parties only contesting the party vote.

Of course, the major point is that that is not what the electorate vote is for. Under MMP, electorates are largely irrelevant to the make-up of Parliament: they're a purely local race aimed at determining whom local voters believe will best represent their local interests in Parliament. It doesn't seem unreasonable to limit an electorate race to people who actually want to represent the electorate.

At the last election, this seemed to come to head: the deals were more explicit, and seemed to annoy people more. When Damian Christie asked the four candidates featured on the Ōhariu electorate special of TVNZ7's Back Benches to raise their hands if they wanted people to vote for them, only two of them did. Lots of people stand knowing that they won't win, but putting your name forward for election when you don't even want to win seems almost dishonest, and I'm not sure we should be writing our electoral laws to benefit those who wish to run in order not to be elected.

It will no doubt be argued that a policy change like this will favour some parties over others. But that will be true for almost all possible changes to MMP. In particular, prohibiting dual candidacy would potentially hurt a party like the Greens, who wish to use their big name MPs in local races to raise profile for the party vote. But as I've said before, I really don't care about parties. I care about voters and I care about democracy. And designing a system which encourages the creation of voting options no-one wants people to vote for doesn't exactly seem democratic.

And the choice really doesn't change for a party like the Greens: if we ban dual candidacy, then they'll either have to run someone in an electorate who doesn't want to win it – which is, um, exactly what they do now – or they'll focus on the party vote, which is, well, also exactly what they do now. Banning dual candidacy will simply encourage the Greens to become the “MMP Party” they purport to be: focussed on the all-important party vote. As an added bonus, encouraging parties that only seriously wish to contest the party vote to contest only the party vote, may have nice voter education spin-offs, as voters are reminded that it is the part vote that matters overall.

There is a half-way option, which addresses the concern people have with zombie MPs, those who are returned to Parliament after losing an electorate they previously held. Rather than prohibit all dual candidacy, this would only prohibit current electorate MPs from running both in an electorate and on the list. As I've never really had a problem with zombie MPs, I haven't really addressed it. If this is your concern, but you also like that MPs and candidates with no hope of winning electorates get to stand, then it may represent a good compromise.

Where does this leave us? Like I said, I'm wavering, and a lot more than I ever thought I would. The political marketplace may be enough to convince me to leave this all to voters, but if we think strong local representation is an important feature of MMP – and not everyone does – then banning dual candidacy is something we should seriously consider.

I think quite a bit about electoral law and electoral systems, and our MMP system in particular. So I'm somewhat surprised to find myself wavering over a number of the aspects of MMP that the Electoral Commission review will address. Hopefully the upcoming posts will help me form more considered views.

And, of course, thinking about these things, and seeing what others think, will hopefully encourage a few of you to make your views known as well. Which you can do here :-)

The review addresses a number of aspects of the MMP system: the two thresholds, dual candidacy, the rules for ordering party lists, the overhang, whether list MPs should be able to contest by-elections, the decreasing number of list seats (and whether this may present proportionality problems).

We've also got the option to raise others (as long as they relate to MMP, and not broader matters that could arise under any electoral system). The issue of whether we should retain the Maori seats is left to the constitutional review, along with (mostly) the number of MPs, but a few other issues are likely to get a look in: the ratio of list MPs to electorate MPs will be raised by a lot of people, and a few others I could probably never think of.

This first post looks at the threshold. Of all the issues clearly up for review, this is the one I've found easiest. I've known my views on this for a long time. My view on the electorate seat threshold did change not too long ago, but on the party vote threshold, I can't ever remember thinking differently. The arguments have changed, but my view has always been that the threshold should be as low as possible, and that we aren't even close to having the balance right.

Perhaps more than any of the other aspect of the MMP review (although open lists comes close), the debate over the thresholds is likely to bring out our political parties' partisan interests. So one thing I fear, is that the discussion on whether to change the threshold will become a debate between the current 5% threshold, and the 4% the Royal Commission recommended. On details like those we're discussing as part of this review, the status quo – or something close to it – almost always benefits the parties (and the MPs representing those parties in particular) more than anyone else.

The only difficult question I'm presented is whether to push for the complete absence of an artificial threshold, or to propose that it be kept, but lowered, as a more likely compromise.

New Zealand is among the longest-standing democracies in the world. We have had a functioning party system for over 100 years, and our two major parties are both well into their second half-centuries. I think that the New Zealand political system is mature enough that we could cope in the absences of an artificial threshold.

It may be that the time we have had with a 5% threshold has helped this, and that the absence of a threshold would have been destabilising at our first MMP election (although perhaps the likely effect would simply have been that one or more of the constituent parts of the the Alliance would have contested the election separately). I see no reason it would be partcularly destabilising now.

Almost inevitably, when the prospect of there being no artificial threshold is raised, someone will point out that Israel has no threshold, and that we don't want our politics to end up as fractured as theirs. My first reponse is, naturally, to point out that Israel has a threshold, and it always has – it started at 1%, was raised to 1.5% and is now 2%.

My second point is that the South African electoral system actually has no threshold, and they're not far short of a one-party state. Israel's fractured parliament arises from its fractured politics, not the other way around, and while a higher threshold in Israel could act to prevent the fissures in its politics spilling over into its Parliament, in countries without that highly fractured political climate, a highly fractured Parliament is unlikely.

When Israel formed, it's first parliamentary election was conducted under proportional representation, with a low threshold, so it never established the type of party system – with two major blocs – that people tend to view as providing stability. However, if we were to abolish, or substantially lower, the threshold, we would take our history of stability forward with us.

Supporters (and especially members) of National and Labour (and other parties too) who fear a fragmentation of our political system with a low threshold should be tasked with answering the question: why do you think that your party will disintegrate at the first opportunity?

And naturally, there are advantages to having multiple smaller parties in Parliament. One of the concerns many people have with minor parties is their exercising disproportionate power. But the greatest chance of that happening is when there is only a small number of small parties.

If there are multiple different options for a major party – if National can go with John Banks and Peter Dunne, or instead vote with the Maori Party ... if Labour can get support from the Greens, or New Zealand First, then the power of one minor party grouping is substantially diminished. The power New Zealand First exercised after our first MMP election in 1996 was because neither National nor Labour had a serious options that didn't include New Zealand First.

The Parliamentary Assembly of the Council of Europe has on several occasions considered the effects of different aspects of electoral systems on democracy: 

In well-established democracies, there should be no thresholds higher than 3% during the parliamentary elections. It should thus be possible to express a maximum number of opinions. Excluding numerous groups of people from the right to be represented is detrimental to a democratic system. In well-established democracies, a balance has to be found between fair representation of views in the community and effectiveness in parliament and government.

It has also said:

Thresholds ... have a significant impact on the representativity of an elected body. This question of utmost importance has already been discussed in the Assembly on several occasions and the Assembly’s position is clear: in stable democracies legal thresholds over 3% are hardly [ever] justifiable. There is no reason to bar certain groups of citizens (minor parties) from access to parliaments.

We do not presently have the balance right. Whatever the rationale for a threshold (stability, effective government, effective Parliament, or something else) it should not be so high as to preclude a serious attempt to break into Parliament from the outside. And five percent has demonstrably failed in that regard.

It may be that New Zealanders consider themselves reasonably well served by our political options, but a threshold of 5% has proved – and is likely to continue to prove – far too great a barrier to political alternatives. Unfortunately, a 4% threshold is likely to prove little better.

Not only does a threshold as high as 4% or 5% depress the vote, it may also artificially lower the vote of parties who are near the threshold. People who want their vote to count, and who are voting for a party whose support is non-negligible, shouldn't be placed in the position of wondering whether their vote (along with the votes of many tens of thousands of others) will count at all.

I reject David Farrar's comparison of my position to that of religious extremists who spit on children (seriously?). Supporters of the threshold need to do more than point to countries with low thresholds and argue we'll be like them. Not least because the experiences of democracies with low thresholds vary greatly.

Our nation is not historically based on the need to protect a long-maligned religion whose existence was threatened by the Holocaust, nor do any of our neighbours hope for our destruction, so maybe, just maybe, changing one aspect of our electoral system will not magically make us the Israel of the South Seas.

A threshold should be as high as is needed to meet whatever real threat we feel we need to guard against and absolutely no higher. At 5% – and I believe 4% as well – we will be denying democratic voice to people not because we fear for the stability of our political system, but simply because we don't want a few extra voices heard.

We have had a number of parties in Parliament with one or two MPs, and this does not seem to have posed any great stability problems. I can recognise that there is some legitimate benefit to avoiding a proliferation of small parties in Parliament: a large number of single MP parties could make governmental and legislative coalitions difficult to manage, but in effectively banning parties with one or two MPs, there is no need to ban parties that would have five MPs.

I'm putting forward a number for the threshold, and others are putting forward other numbers, and mostly we're just pulling numbers out of the air. I'd like the Electoral Commission to closely consider the pros and cons of the whole range.

What will it mean if we set it at a level where we can have single MP parties? How many are there likely to be? What will the likely effects be on government formation and the legislative process?

If the threshold is at around a two MP level, how well will such parties be able to perform the work we expect of parliamentary parties?

If a three-MP party is in the opposition, how frequently will it get to ask a primary question in the House? How many bills in the areas of legislation important to it will it be unable to subject to real scrutiny?

At what level is a parliamentary party likely to be too small that its MPs will be unable to do a substantial amount of the work we would expect even a small party to be able to do? Perhaps if a party is so small that it can do almost none of the things we would expect of people representing our voices in the House of Representatives, the arguments in favour of thresholds have some meaning.

If all that can be offered to the small groupings needed to elect one (or two) MPs is the illusion of effective Parliamentary representation, it may be legitimate to set a threshold at a level where we can have some confidence those who make it into Parliament will be able to be effective representatives.

Ultimately, the Commission should determine the size it considers a minor party is likely to be effective enough that the rationales for telling its voters that they can't be represented at all fall away.

Even though we've had 5% threshold, we have had parties in our MMP Parliament at every potential size for a minor party: ACT, Mana, the Maori Party, the Progressives, and United Future have been elected as single MP parties; ACT, the Progressives and United Future have had two MPs; the Maori Party and United Future have had three MPs, The Maori Party has had four MPs; ACT, the Maori Party and New Zealand First have had five MPs; and the Greens have operated with six MPs.

Over such a short period, we've amassed quite a useful selection of case studies: of minor parties that have worked closely with others in opposition, and that have worked alone in opposition, those that have sat on the cross-benches, and others been in government. There is the data to assess the contributions they made, the level of representation they provided those who voted for them, and the concessions they've exacted (for good or ill).

Looking at the experiences we've had, you might think, actually, a one-MP party can add to Parliament in a way that our democracy would have suffered were they not there. And if you don't agree with that, you might still look at our experiences with three MP and four MP parties and consider, yes, those parties were able to do a lot on the issues important to those who voted for them.

I want the Electoral Commission review to engage with these sorts of questions, in a way that the Royal Commission simply didn't (primarily because of scope – the Royal Commission made 71 numbered recommendations, of which recommendation 1 was MMP, including all the details such as the threshold). The Royal Commission recommended a 4% threshold (along with the one seat rule, and also having no threshold for parties primarily representing Maori interests), but its argument – at least as articulated publicly – was weak:

Before setting on a 4% threshold, the Commission considered alternative possibilities ranging from no threshold at all to a 5% threshold, as used in elections in the West German Bundestag. We are persuaded that if no threshold is set or if it is set too low, the operation of effective government is very likely to be frustrated. On current voting numbers and assuming 120 seats allocated by the modified Sainte Laguë method, the absence of a vote threshold would give a first seat in the House to every party recording around 25,000 votes. We think this is too low and could give rise to a proliferation of small parties with few seats in the House. The adoption of an appropriate threshold is a key element of our proposal, and we would view it as clearly undesirable to have no threshold . We only think it justifiable to waive the threshold in the very limited way which we indicated above.

On the other hand, we view a 5% threshold as too severe. Under such a proposal a party would need almost 100,000 votes to gain one list seat. In our view this would, in New Zealand, be too great an obstacle to the development of new and emerging political forces.

An only slightly shorter version would be: “no threshold is too low, 5% is too high, let's go with 4%.” Why was 2.5% too low? Why was 3% too low? Or 2%? You can read the several hundred pages of the Royal Commission's report and won't be any wiser. It simply never offered a reason. The Electoral Commission – with it's much narrower focus – is well-placed to do so.

The way that people tend to look at this is to consider the effect on parties: for example, in 2008, the 5% threshold meant that New Zealand First wasn't represented in Parliament. This is a fundamentally flawed way to approach thresholds. I don't care about parties. I care about voters. The threshold wasn't unfair to the New Zealand First Party, but it was unfair to the 95,356 people who gave it their party vote. By having a threshold, and in particular, by having a high one, we are telling a lot of people that they have no place in our democracy, and that their views matter less because they voted the wrong way. In creating a threshold, we are deciding that the voices of some voters just aren't worth hearing. 95,000 voters are enough to given any party 5 MPs, or any party 5 MPs more. That's a lot.

My simple point is that the threshold should be as low as is needed to achieve whatever it is we want to achieve by having a threshold, and absolutely no higher. So I'm stumping for 2.5%. Whatever anyone wants to achieve by having any threshold at all, I consider it will be achieved with a threshold at this level. Any number will have a whiff of arbitrariness about it, but I think this has a bit going for it if we are going to have a threshold.

In a 120-seat House of Representatives, a party which has the support of 2.5% of voters, has fully earned 3 MPs (with rounding, a party could get three MPs with somewhat fewer votes – as little as 2% will sometimes be enough). Although the case can be made (and I'm quite amenable to it) that two MPs is large enough to have a positive effect on Parliament, when we're talking about 3 or more likely 4 MPs (which cuts in at around 2.8% ~ 3%), we're really talking about a significant and useful bloc (of voters, and of MPs). At 4% or 5%, you're saying that a some groupings of five MPs are too small to bother with, and their voters justifiably ignored, which is at least a couple of steps too far.

Now, you can legitimately argue that even a 2.5% threshold is too great an imposition on the the principle that all voters should be equal, and there's something in that, however I'm a pragmatist, and because I think it highly likely that this debate will end up being an argument over whether the threshold should be 5% or 4% and because I think both of these numbers are far too high, I'm happy to compromise.

Guaranteeing that the smallest party (other than one with a strong electorate presence) will have at least three MPs will ensure our politics doesn't fracture unless one of the major parties does something particularly egregious. Each party will be able to sit on a range of select committees, and will be able to cover most of the important bills; the party will have a primary question each week, and a caucus large enough to ensure a party presence in the House, with sufficient support staff to enable them to effectively operate. A party of three MPs is large enough not be viewed as a joke, and large enough to provide a meaningful level of representation to those who voted them into office.

A lot of people do have concerns about our politics fracturing, and while I think that those concerns are exceedingly likely to prove entirely unfounded, it is only proper to recognise that for many, those concerns are legitimately held. The problem with pushing for the total absence of an artificial threshold is that if that argument is lost, and it is decided we should have a threshold, the debate may default to: should it be 4% or 5%?. For me, I'm willing to give up the slight chance of no threshold, for an increased chance of a threshold that is not so high as to stifle political innovation. 

So that's why I'm pushing for 2.5%. I don't appear to be alone, which is good, and I'm hopeful for a good hearing. But I recognise that I have no particular claim to possession of the right answer on a matter like this, which is why I consider that it is imperative that the Electoral Commission assess the arguments for an against setting the threshold at a range of levels: none, none with modified Sainte-Laguë, 0.833% (or 1/120^th of the vote), 1%, 1.5%, 2%, 2.5%, 3%, 4%, 5%, 6%, 8%, and maybe even a few others.

It should look at what this would mean the smallest parliamentary strength a party could have under each scenario, and how many votes a party would need to get, as well as how many wasted votes there would likely end up being, and a whole host of the other likely effects. If it's particularly brave, it might even like to model what effect these changes might have on enrolment and turnout (something that the triennial select committee review of the general election – which is seeking submissions as well – and it is particularly concerned with the drop in turnout might like to consider). At 2.5% (or lower) we may give many more potential voters certainty that their vote will count.

Of all the issues being considered in the review, getting this one right has the greatest prospect of improving our democracy. At 5% the status quo political parties – government and opposition – are protected. Even at 4% they will probably be reasonably confident too that a new political movement claiming to better represent their core voters will be unlikely to ever sustain a level of support needed to grow over time to be a major political force.

The threat, not of losing an election or two, but of being supplanted by someone else, is what should ensure whatever party we support is true to its supporters. The high threshold we currently have makes this an empty threat. 

If you wish to make an oral presentation to the MMP Review, you should forward your written comments by Thursday 5 April. Otherwise, you have until 31 May to let them know what you think.

When the Search and Surveillance Bill (now Act) suddenly became a political hot topic a couple of years back, I started writing/researching a post that would explain what it did and did not do. I read pretty much the entire Law Commission Report before realising I would not have the time to do the topic justice, so largely dropped it.

However, it has been in the news again, and I thought that, while I may never be able to examine the whole thing, it might be useful to take exceedingly small parts of it and explain what has happened, especially when some of those bits have made the news. We begin today (and may or may not actually continue) with the changes made with respect to search warrants and media privilege.

There was substantial comment to the effect that the bill is a retrograde step for journalism, and that changes made late in the day made it even worse. I am confident that neither of these things is true.

As can be seen from the search warrants executed following the teapot tapes, media currently have few special protections when it comes to being search by police. There are cases about being careful in granting search warrants in respect of the media - and if a media organisation found out there was a search warrant before the search was carried out, they could seek an urgent judicial review and ask that the issue of the warrant be quashed - but once police obtain a search warrant in respect of a journalist or a media organisation, they can and do execute it in pretty much the same way that they do with anyone else. They can go in, and look through a journalist's stuff, including, potentially, computers, and recordings, and notebooks and cellphone records. If a journalist has material naming a confidential source, police can seize it under the search warrant in the same way they could any other evidence relating to an offence.

And this is the current law.

Various people within the media have pointed to the section of the Evidence Act providing for journalistic privilege, and saying that it is being subverted by the changes. However, it has never applied to material that might be obtained through a search warrant. It is principally about evidence in Court, and whether, for example, a journalist called to give evidence can be required to answer a question that would force them to disclose confidential sources. Journalistic privilege has never been able to be used to tell a police officer executing a search warrant "you can't seize that! It's covered by journalistic privilege."

The Search and Surveillance Act changes this. When conducting a search of material in which there may be a potential claim of privilege (such as journalistic privilege), that person must be provided with a reasonable opportunity to claim that privilege, by, for example, conducting the claim in their presence, and allowing them to say "oi, that's protected, don't look at that." The person conducting the search must then either not take that item, or may secure the item, and then take it to a court to have the claim decided; they cannot search it until specifically authorised by a Court (because, for example, it has decided there is actually no privilege).

Anyone interested in protecting journalistic privilege should welcome this law change.

The principle change made to this by the supplementary order paper was so that questions of journalistic privilege would be decided by a High Court judge (who will generally have more time to get to grips with the argument), and to making the process by which journalists (and others claiming privilege) could actually have their privilege claims determined slightly clearer.

Maybe the law could go further in protecting journalists, but it is already a substantial advance on what we currently have, which provides few firm protections for media organisations which are the subject of search warrants.

Earlier today, Police Assistance Commissioner Malcolm Burgess held a press conference to discuss his decision not to charge Bradley Ambrose with a criminal breach of privacy.

After a brief statement, questions were taken. A reporter enquired:

Did you reach a view on whether or not this was an intentional recording or accidental?

A/Cmmr Burgess replied:

The investigation reached a view that at the very least it was reckless and it was, in the view of the investigators, more likely deliberate.

Please allow me to paraphrase this, in terms of its legal consequence:

Police believe that had this matter been taken to trial, they could not have established all of the elements of the offence, and that Mr Ambrose would therefore have been properly found not guilty, and that any conviction of him on the evidence they could present would have been a miscarriage of justice.

In my post on "The Prime Minister's Hour" yesterday, I raised the prospect that the time Radio Live had allowed Prime Minister John Key to fill might constitute a donation that might have to be declared under the Electoral Act.

And Andrew Geddis asks the same question. But I've been hedging my bets. Now that that debate around this being an election programme has passed (we await a speedy police decision), we can move onto these, potentially more important, questions.

The National Party President is quoted in the Herald:

However, legal commentators yesterday suggested National might have to declare it as a donation instead.

National Party president Peter Goodfellow said he was seeking legal advice on that. He doubted it would be considered a donation because it was not an election advertisement.

I reject this analysis. If I ran a polling company, and gave Labour $100,000 of free polling, that would be a donation, although polling is not an election advertisement. If I had a spare house and gave it to the Green Party, which they raffled off to make money, that would be a donation, even though a house is not an election advertisement. If I was more well off than I am, and gave National $1,000,000, which they put in the bank, that would be a donation, even if the money was never spent on election advertisements, or never spent at all. It doesn't matter what a donation is for, or what a donation is of - a donation is a donation, and all party donations over $30,000 must be declared within 10 working days of their receipt by the party secretary.

So I think there may have been a donation, but even if it is, who is it a donation to, and perhaps even, who is it a donation from?

John Key, I understand, replaced usual host Paul Henry for an hour of his Radio Live show. When a Radio station has a stand-in host, they'd usually pay them. I'm guessing Key didn't charge. So Key has saved Radio Live money.

But more importantly, Radio Live got free publicity. And high profile interviews they'd probably never have got otherwise. And maybe more listeners for the hour, and possibly profile that gets them more listeners going forward. Things that may make them money, and which otherwise would have cost Radio Live money. And when people bring their skills and profile to a commercial enterprise in a way that makes that company more profitable, they tend to charge.

We've rhetorically asked the question: 'what would it be worth to John Key to get an open hour of prime time radio on Radio Live?', but you can turn the question around: 'what would Radio Live pay to get a really popular host to host their show, so well known that his being on the show may raise the station's profile, and who not only hosts the broadcast for an hour, but has his staff arrange interviews with high profile people you may never be able to get (and certainly couldn't get within the space of an hour)?' The answer could quite easily be "a lot". And given that Key didn't charge them anything, could he instead be considered to have donated his time and celebrity to Radio Live?

This is how this is different from an ordinary donation. If I give a party $100,000 of free polling, I may free up money for them to advertise, I might help them get elected, I might buy "access", I might help be enacted policies they've already announce which I like. And while those things may be beneficial to me, it's a different type of benefit to what we've got here. Radio Live gave Key/National something of value, but they got back something of value in return, and the commercial nature of that transaction may be enough to see it fall outside the legislative meaning of "donation".

Or maybe not. Maybe it's an inherent feature of politicians that that will (almost) anything for good publicity. Even if Radio Live got value from John Key's appearance, does that mean he gave something up (like normally happens in a commercial transaction)? And is that even the defining point of a donation anyway? With some luck, the Electoral Commission won't take as long reaching its conclusion on this question.

And, of course, we still haven't answered the other questions: if this was a donation, and a donation made by Radio Live, was it a donation to the National Party, or to John Key? The Electoral Act is clear that goods or services can be donations: how exactly would John Key transfer any live broadcasting time donated to the National Party through him, to the National Party Secretary, as the law seems to require? And if there is a category of donations that cannot be transmitted to a party secretary, does that mean those donations never need to be declared (the two sections of the Electoral Act dealing with party donation returns only require disclosure of donations received by the Party Secretary)?

This may take some time.