Andrew Geddis

Too many errors – why ‘Dirty Politics’ won’t convince swing voters

Rodney Hide has very publicly rubbished Nicky Hager’s claims that Hide was blackmailed into resigning as ACT Party leader. Here’s an extract from his Herald on Sunday column this morning:

It seems a character called Jordan Williams told another character, Simon Lusk, that I had sent inappropriate texts. Lusk and blogger Cameron Slater then apparently message each other about threatening me with the release of the texts unless I resign.

And then I resign.

Oh, and Don Brash in replacing me was – according to Hager – Lusk’s client. Ta da!

What hasn’t been reported is Hager writing: “The documents do not contain the texts and we do not know they exist. There is also no evidence that a direct threat was made to Hide.”

So he quietly admits his “explosive claim” could be a fizzer. Even with the admission our so-called investigative journalist never bothered confirming his story. Hager never rang to ask: “Hey, I have just come across the damnedest stuff and just have to ask, were you ever blackmailed?”

To which I would reply: “No, definitely not. I would never give in to blackmail. I would go straight to the police. It’s a crime. I have no doubt the police and the courts would take a dim view of any attempt to blackmail a political leader and Government minister. It never happened.”

But then if Hager had fact-checked, “one of the most explosive claims in the book” would evaporate. Far better to publish, run the story, make everyone scramble.

That’s the thing – the blackmail allegation seems a case of Hager playing join the dots with too few dots. A few political operatives emailing each other and saying, “We should blackmail Hide!” doesn’t mean that Hide was actually blackmailed.

The blackmail allegation was one of the big allegations that featured prominently in the media’s initial coverage of Dirty Politics, along with the allegation that Judith Collins had arranged for a prisoner to be moved at Cameron Slater’s behest. The media are now backtracking on the Collins allegation, with Nicky Hager clarifying yesterday that he’s in fact alleging that a prison officer arranged for the prisoner transfer, not Collins. It’s a misreading of the book by journalists, rather than a mistake by Hager, but it substantially reduces the culpability of Team Key.

The more allegations that are either proven to be false, or can be credibly argued to be an exaggeration, the less likely it is that the public (who haven’t read the book and are relying on media coverage for their information) will believe the credible allegations.

Just look at last night’s One News Colmar Brunton’s snap poll. Question two of the poll asks:

[Nicky Hager’s] book suggests smear campaigns and leaks were organised at the highest levels of the National Party, including the Prime Minister’s office. Do you believe these suggestions?

The results? Just 28% of respondents said yes, they believe these suggestions. 43% said no, while 29% didn’t know.

And question three?

Have these allegations positively or negatively influenced your view of the National Party, or have they not made much difference?

5% didn’t know, while 82% said “Not made much difference”. Just 9% said they’d been negatively influenced. (And I don’t even want to know what’s going on in the minds of the 4% who said their view of the National Party had been positively influenced by the allegations…)

Now one could argue that if those 9% of voters who have been negatively influenced were leaning National and were now leaning left, that that’s a huge impact. A 9% shift in the polls would likely hand the election to Labour and the Greens. However, we don’t where those 9% of voters sat, in terms of allegiance. It’s entirely possible that a good chunk of them are left-wingers who didn’t like National, and now like National even less. Or that some are National voters who may like National less, but not enough to vote for a different party.

It’s a pity that Colmar Brunton didn’t dig deeper with their questions, but I guess we’ll see impact of Dirty Politics with the upcoming polling cycle. But I’ll be surprised if the impact is substantial.

UPDATE:

For those interested in a complete summation of the Rodney Hide blackmail dots that can be connected, Danyl Mclauchlan at The Dim-Post has a useful timeline.

Also worth noting is Andrew Geddis’s comment on Danyl’s post:

The question isn’t so much “did Hide actually step down because he was frightened into it by threats of stuff being released?” It’s, “did these people conspire to bring about this result?” Because you can plot to do something and be criminally liable for doing so without actually bringing the plan to full fruition.

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It isn’t easy being Whyte

Jamie Whyte has a problem. He’s the leader of a party that doesn’t have enough support to get more than one MP into Parliament, assuming ACT wins the Epsom electorate. And given that he’s not the one standing in Epsom, that means that unless something magical happens to ACT’s polling, he’ll be missing out. David Seymour will be ACT’s sole representative in Parliament.

ACT is polling just 0.5% in this site’s Poll of Polls. The highest any major poll has had them this year is 1.1% (the mid-March 3News Reid Research poll), and in the last dozen polls released, they’ve hit 1% just once. Of the last five poll results, they’ve ranged between 0.8% and not registering at all.

Richard Prebble (and, to a certain lesser extent, Rodney Hide) understood that ACT’s natural ideological constituency was relatively small. There really aren’t that many classical liberals floating around. Nonetheless, in the wake of the ever-extending meltdown that was the last gasp of Hide’s leadership, Don Brash’s attempt to make lightening strike twice, and John Banks’ eccentric conservatism, ACT finally went back to its roots. Jamie Whyte was supposed to be the calm voice of rationalism. Voters would be unable to ignore the power of the Professor’s arguments, and ACT would be great again. No more the shrill populism of perk busting! No more the awkward conservative Sensible Sentencing Trust juxtaposition! Nothing but cool, calm classical liberalism…

Unfortunately, such ideological purity still has only a tiny natural support base. Thus, no movement in the polls. So what do you do when nothing you say gets you any traction? Well, after having consulted Richard Prebble, there’s only one way forward – go populist. Expand upon Three Strikes, and go Back to the Future with a One Law For All crusade!

Now, Richard Prebble always understood that when one rabble-rouses, one shouldn’t over-think the rationale. One Law For All and Getting Tough On Crime don’t have the most convincing rationales behind them – either philosophically or statistically. They’re crude slogans, designed to attract support without thought.

That’s not the Whyte way. As a former professor, he doesn’t want to be seen as simply a common Prebble-esque rabble-rouser. He enjoys the role of political philosopher, and therefore needs a philosophical underpinning to his every stance.

One gets the feeling that his impassioned philosophical defence of One Law For All was made up on the fly, a work in progress. It was certainly easily demolished on blog sites such as Pundit, Maui Street and Public Address. And from there, the philosophy-on-the-hoof process has continued, with Whyte attempting to cite coup-plagued Fiji as a model of racial policy. Now he’s tried to cite Sweden as a an example of how to eradicate race from the law, only to be monumentally fisked by Professor Andrew Geddis.

Unfortunately, the populist policy Whyte is pushing already exists (to a greater or lesser degree) within a crowded conservative market place. Whyte is up against Winston Peters and Colin Craig, and Whyte is certainly not a patch on Winston when it comes to selling racism. He’s not even a patch on Colin Craig in those stakes, and that’s certainly saying something.

They say that all publicity is good publicity, and Jamie Whyte must certainly be hoping that’s the case. There’s really little else that seems likely to go his way.

The problem with bottom lines…

It looks increasingly unlikely that National will offer Colin Craig an electorate deal in East Coast Bays. Leaving aside the horrible spectre for National of Winston Peters going toe to toe with Mr Craig, leveraging the added publicity to ensure NZ First get over the 5% threshold, and beating Mr Craig in the process, there’s now the added issue of the Conservative Party’s bottom line.

Colin Craig has announced this weekend that introducing binding referenda is a bottom line. Without the promise of binding referenda, the Conservatives will not enter into either a coalition or a confidence and supply agreement.

Personally, I’m not a fan of the concept of binding referenda. The (non-binding) Citizens Initiated Referenda that have taken place in New Zealand have generally been conducted with little informed debate, and have had badly framed questions.*

However, it’s not my personal opinion that matters. It’s the opinion of the National Party that matters here. And National have just had to put up with Labour and the Greens organising a Citizens Initiated Referendum against National’s flagship asset sales policy, with 67.2% of voters voting no to asset sales, and National saying, “Bugger off.” The last thing National would want to do now is turn around and declare support for binding referenda.

And of course, there’s the fairly major issue that, constitutionally speaking, it’s damn near impossible to even introduce binding referenda in this country. For an excellent summary of why, check out Professor Andrew Geddis’ blog post at Pundit.

It all adds up to a very coherent argument for National that it’s better to tell Mr Craig “no deal”, bring down the boot on the Conservative Party’s hopes of getting an electorate seat, and provide no incentive for voters to vote Conservative.

* The anti-smacking referendum question was memorably belittled by John Key, who said it:

“could have been written by Dr Seuss – this isn’t Green Eggs and Ham, this is yes means no and no means yes, but we’re all meant to understand what the referendum means. I think it’s ridiculous myself”.

Likewise, the anti-asset sales referendum question was puzzling for those such as myself who had no ideological opposition to the Government owning only 51% of a power company or airline, but opposed the Government flogging off billions of dollars in shares against Treasury advice that the short sales time frame would over-saturate the market and reduce the financial return for the Government.

Donghua Liu – clearer than mud

So, just yesterday the NZ Herald were reporting that Donghua Liu would not be commenting further on his political donations and would not be supplying any affidavits regarding dollar amounts, and I was calling for Mr Liu to come clean.

Well, whaddaya know? This morning the Herald has suddenly obtained a signed statement from Donghua Liu dated 3 May 2014, two days after Maurice Williamson resigned as a Minister. I’m interested in where it came from. Stuff.co.nz had previously reported that Mr Liu was poring over an affidavit with his lawyers, who were concerned about the lack of documentation. The statement obtained by the Herald apparently isn’t a sworn affidavit, but it is signed by Mr Liu. One wonders who’s slipped it to the Herald… And is there another draft affidavit out there, lurking in a lawyer’s office, never to see the light of day?

Regardless, this signed statement is hugely embarrassing for the Labour Party, given their “cash for access” attacks on National. The Herald reports the statement as saying:

• Liu paid “close to $100,000” for wine at a 2007 Labour Party fundraiser;

• That he spent $50-60,000 hosting then-labour minister Rick Barker on a cruise on the Yangtze River in China in 2007; and

• That Liu visited Barker in Hawke’s Bay in 2006, having dinner with him at an exclusive lodge and then meeting for breakfast the next morning. Liu said he made a donation to Hawke’s Bay Rowing, which Barker was associated with.

Rick Barker, after challenging Mr Liu to put specific allegations in writing, may now be wishing he’d kept his mouth shut. The contents of the statement mean that Mr Barker has some serious explaining to do. A $50,000 to $60,000 cruise on the Yangtze River is something that should have been disclosed, so will Mr Barker now rely on “brain fade” or will he call Mr Liu a liar?

And of course there’s the big question of what happened to the “close to $100,000” donated to the Labour Party. Many of my questions from yesterday remain.  Why does no one in Labour seem to know anything about this (apart from the Herald’s two un-named Labour sources)? Wouldn’t an almost $100,000 winning bid for a bottle of wine have turned a few heads at the time? Who in Labour received the donation, or was it an electronic transaction? If it wasn’t an electronic transaction, was it cash or a cheque? Did it go to Head Office or to one of the electorate committees?

Over at the Pundit site, Professor Andrew Geddis focuses on donations to Labour from law firms on behalf of undisclosed clients. Labour received three such donations – one of $150,000 from Palmer Theron, one of $50,000 from Simpson Grierson, and one of $30,000 from Morrison Kent. Professor Geddis focusses on the $150,000 donation, suggesting that it might have come from Mr Liu, and noting that if Liu doesn’t confirm or deny it, we’ll never know. However, Liu’s statement refers to a donation “close to $100,000”. That’s a more than $50,000 shortfall between what Liu says he donated and the Palmer Theron donation.

Lynn Prentice yesterday referred me to a 2010 blog post by Professor Bryce Edwards, “Pansy Wong’s dubious solicitation of political funding“. It refers to a fundraising event held by Pansy Wong in 2007, at which $200,000 was raised, including $50,000 paid by a Chinese businessman for one of John Key’s ties. The money didn’t appear to have been declared by National in 2008, and Professor Edwards discusses various reasons why that might have occurred. One of those reasons is the then practice (apparently illegal now) of treating a fundraising event as a “bogus business venture”, with all money raised classed as “business transactions” rather than donations. Thus, in terms of the $50,000 tie, the party could argue that the business valued the tie at $50,000 and it was therefore a valid “business transaction”. It’s entirely possible that Labour has adopted the same approach in the Donghua Liu situation.

Professor Edwards has called for a police or parliamentary enquiry. As Professor Geddis has pointed out, “[t]he Electoral Act in 2007 contained a six-month time limit on any prosecutions for filing a false electoral return”. That’s a time limit that has long since expired… The court of public opinion is the only court that Labour will be tried in, which may be damaging enough, given how soon the election is.

John Banks – a criminal, but not yet convicted

Justice Wylie has delivered his decision in the electoral fraud trial of John Banks, and has yesterday afternoon found Mr Banks guilty of knowingly filing a false electoral return. A copy of the judgment is here.

I for one am surprised. I’ve previously written that I thought it unlikely the Crown would be able to prove the charge beyond reasonable doubt. Nonetheless, the verdict is in, and it’s guilty beyond reasonable doubt. Have a read of the judgment – Justice Wylie’s conclusion is compelling.

The Judge concluded that Mr Banks either had actual knowledge that the return was false, as he knew that no member of his campaign team had been given the information about the Dotcom donations that was required if the return was to be accurate, or the Mr Banks deliberately chose not to check the return, as “he had no real doubt as to what the answer was going to be, and because he wanted to remain in ignorance”.

The most damning piece of evidence for the judge was Mr Banks’ phone conversation on 8 February 2012 with Dotcom’s lawyer, Gregory Towers. That was the phone call in which Mr Towers had called Mr Banks to try and get Dotcom a better mattress in prison. The judgment states (at para 128):

He [Mr Towers] said that Mr Banks told him that as much as he wished to publically [sic] support Mr Dotcom, it might backfire on Mr Dotcom if “it b/comes known about election support etc”. Mr Towers recorded this comment in a contemporaneous file note. He was confident that he had recorded the words that were spoken to him as best as he could. There was no evidence of Mr Dotcom having provided any other “election support” for Mr Banks. … I was satisfied that the discussion recorded in the file note could only have been a reference to the $50,000 donation by Mr Dotcom to Mr Banks’ 2010 mayoral campaign. In my view, Mr Towers’ evidence, and the file note, was compelling evidence, from a witness whose testimony was unimpeachable, that Mr Banks knew that the donations had, in fact, been made by Mr Dotcom.

So where to now for Mr Banks and the government?

The matter has been remanded for sentencing on 1 August 2014, and a conviction has not been entered, as Mr Banks will attempt to receive a discharge without conviction. That means that Mr Banks doesn’t have to vacate his seat, and by the time sentencing occurs the House will have risen and the issue will be moot.

Will Mr Banks be successful in his application for a discharge without conviction? Probably not, but what would I know? I was fairly certain he wouldn’t be found guilty in the first place! At least I’m in good company there though, with Professor Geddis

Mr Banks would have to show that the consequences of a conviction would outweigh the gravity of the offending. I don’t know what consequences Mr Banks intends to put before the Court on 1 August, but to my mind they’d have to be pretty damned serious to outweigh the gravity of attempting to undermine the transparency of our local government democracy. Given that a Pre-sentence Report has been directed that includes a Home Detention appendix, the Court is signalling that it’s relatively serious offending.

So Mr Banks stays on as MP for the good people of Epsom. If he had any sense of decency, he’d resign. He’s been found guilty of electoral fraud, proved to be dishonest beyond reasonable doubt.

If he resigns, John Key loses his majority to pass legislation. The government would still have a comfortable confidence and supply majority, but for any other legislation National would have to negotiate with the Maori Party. However, with National having already given up on its controversial attempt at restructuring the Resource Management Act, it’s unlikely that John Banks’ single vote would be required in the next two months.

For the opposition, it’s a win, regardless of whether Mr Banks stays or goes. If he goes, there’s the humiliation for John Key of having lost his majority. If he stays, there’s the greater pain of endless attacks on the government’s character, as its vote is cynically propped up by a proven criminal. And whichever way Banks goes, John Key looks a fool for having resolutely failed to read the Police report on him.

Setting aside the effect on National, Banks needs to go for the good of ACT. As things currently stand, the party’s polling is nowhere close to bringing in a second MP (should David Seymour win Epsom), meaning for the second election in a row ACT would fail to bring its leader into Parliament. The last thing ACT needs to contend with is an ongoing spotlight on their sole MP’s character and behaviour. Policy simply won’t get a look in.

Mr Banks has been referring to the lyrics, “Into every life, a little rain must fall”. One wonders whether his campaign song all those years ago was Evita’s “And the Money Kept Rolling In”…

I’d back Professor Geddis over Winston Peters any day of the week

NZ First is changing its constitution to prevent a repeat of the Brendan Horan situation, where Horan was ejected from the party, but refused to resign, eking out a well-paid existence as an independent MP and constant thorn in Winston Peters’ side. NZ First will require all of its candidates to sign a contract stipulating that if they resign or are expelled from the party’s caucus, they must quit their Parliamentary seat within three days or be liable to the party for $300,000 in damages.

Professor Andrew Geddis told Radio NZ this morning that such a contract wouldn’t be enforceable. Winston Peters told Radio NZ that it was. As the NZ Herald reports:

“With the greatest respect to Mr Geddis, he doesn’t know anything about this stuff”, Mr Peters said this morning.

He noted Mr Geddis had referred to the legal action that followed when he left the National Party in 1993.

“If he’s going to cite my case, he could at least get the underlying principle right.”

The case that is referred to involved Mr Peters taking the National Party to Court, after he went rogue in the early 1990s, which resulted in National trying to expel him from the party. In the run up to the 1993 general election, National amended its constitution to try and force Peters to sign a form agreeing not to stand for any electorate for any other party other than National. To get renominated for the Tauranga electorate, Peters was required to sign the form, but the odds were fairly short that once he’d been nominated, the party would veto him and prohibit him from standing under any other party’s banner. The High Court ruled that National’s form interfered with the democratic process and thus legally unenforceable.

Professor Geddis, in a subsequent blog post, cites a lengthy section of the High Court’s judgment, including this:

There is precedent, then, for the view that a contract which purports to interfere with the exercise of fundamental constitutional rights associated with election to, and representation in, Parliament may be struck down as contrary to public policy.

Geddis then writes:

The Court then went on to declare that the specific rule that National had adopted – you must sign a pledge not to compete against us if not selected by us – to be an “illegal contract” on these sorts of public policy grounds, meaning that it could not be enforced by a court against Mr Peters (or any other prospective candidate). Meaning that there was nothing to stop Mr Peters running in Tauranga first as an independent, and then as the leader of NZ First, when he subsequently resigned from National.

Mr Peters, on the other hand, says this about the principle of the case:

“The principle finding of that case was that a party had the right to choose its own candidates or determine which candidate they would pick.”

“If that is the principle of that case then the party has the right to pick a candidate who is successful and expect that that candidate be part of the proportionality. If that candidate is not then the principle of MMP is seriously undermined.

I’m not entirely sure what Winston Peters thinks the High Court decided, but he appears to have fundamentally misremembered the outcome of his own case. Mr Peters got a ruling that National’s pledge was an illegal contract, as it interfered with New Zealand’s democracy. Yes, there was a flow-on effect from that – namely, that any other party was free to choose Peters as a candidate. However, what NZ First is proposing does exactly what Peters prevented National from doing all those years ago – effectively preventing an MP from leaving one party and acting as an independent.

To quote Professor Geddis again:

A private agreement (a form of contract) between the MP and the Party will not, on public policy grounds, be enforceable where it has the effect of determining membership of the House of Representatives.

Does anyone other than Peters back Peters on this one?