There can be no doubt now that the Electoral Finance Act is a litigious bomb waiting to go off.
The reported comment by the Electoral Commission's chief executive, Dr Helena Catt: "The commission is not confident it will be able to reach informed positions on the interpretation of some provisions within the election period, and notes the situation is exacerbated by the legal reality that it cannot finally determine questions of whether, for instance, an item is an election advertisement", makes that plain enough. It means post-election litigation of some magnitude.
Dr Catt certainly expects it, describing party election and donation returns, including the new line between election expenses and expenses which are precluded because an MP was acting in their "capacity as an MP" rather than electioneering, as likely court disputes. In some electorates where challenges are mounted, this must mean that the courts will decide who is elected.
So far, the commission has interpreted the Act rather more loosely than might have been expected from such poorly written, fear-prompted and hurried legislation.
It is has done so because the opposite course would have been so ridiculously restrictive as to make a farce of the campaigning, which, after all, should be an arena for open debate and dispute. Hence, its precedent-making decision to permit a membership-rich trade union with close Labour Party links to list as a third party was sensible.
While this will allow one union to spend up to $120,000 on advertising for or against a party, it is also a reflection of the desire by the commission to encourage the widest possible participation in the campaign.
At least the commission appears to be trying to apply common sense in the face of absurd restrictions. "The law of common sense" was, it will be remembered, the Minister of Justice, Annette King's, desperate response to criticism of the Act. But people who deal with realities know full well there is no such law.
Thus, when Rodney Hide paraded around Parliament wearing a jacket that was also an unauthorised Act New Zealand party advertisement, no "law of common sense" could be found to prevent it. And a billboard critical of Winston Peters was a breach because, the commission said, it represented election advertising - against him.
Although he is still a (deselected) Labour MP representing his electorate until election day, David Benson-Pope has had to remove all material identifying him as such from his South Dunedin office in order not to threaten a breach of the Act, for the Act defines an "election advertisement" as anything that could be reasonably regarded as encouraging a person to vote for or against a party or candidate.
The commission, the Human Rights Commission and the Law Society all criticised the Act as unclear and undemocratic before 63 MPs made it into law. But Labour and its allies are now discovering the folly of forcing this ill-considered law through as quickly as they did.
The National Party says it will revoke the Act and indeed it may, but that does not mean there are good points in it that should be abandoned. If the original intention of the Act is taken to be the worthy one of limiting the unpublicised influence (and money) outside organisations can have in elections, then this should be the basis of a revision of the law.
The Prime Minister continues to fly the kite of public funding of political parties, but such a significant and expensive measure is not necessary. What is necessary is some means whereby "transparency" in election funding can be achieved.
Dr Catt has spoken of the law having a "chilling effect" on people's willingness to speak out over election issues, and by that we assume she meant the Act's punitive provisions affecting lobby groups and so-called "third parties" - those not contesting the election but wishing to contribute to the process.
But there would undoubtedly be a "chilling effect" on donations to parties were the law to require public disclosure of everyone's identity. By the same token, however, the present system means the potential exists for campaigning to be dominated by the biggest spending partries, and by implication the biggest anonymous donors.
This raises doubts among voters in two ways. The first is that an election may somehow be "bought" (which was the basis of accusations against National in 2005); the second is that if people think governments are formed by the biggest spenders, then it may tend to reinforce levels of apathy and declining voting numbers.
The fall-out from the Winston Peters affair has tended to strengthen the argument that the public's interest in knowing who is funding parties outweighs any privacy interest. It follows that a review of the Act must seek a far better balance between the private rights of individuals and groups to contribute to political parties, and the need for greater transparency.
