David Farrar: The Police should have prosecuted

The Herald reports:

National MP David MacLeod says he is “hugely relieved” by the police decision not to take any action over his failure to declare more than $178,000 in donations before the last election.

The Electoral Commission referred the issue to police to investigate in June after MacLeod initially failed to declare the donations in his 2023 return, something he said was “a genuine mistake”.

Police have decided not to take any further action against the New Plymouth MP over it. MacLeod had amended his return in May to include the missing donations after the National Party discovered they had not been disclosed during post-election checks.

MacLeod told the NZ Herald it was the result of a genuine mistake and he had addressed it once it was discovered.

I believe this was the wrong decision by Police, and another example of why they should not be the body that enforces electoral law.

I am sure it was absolutely a genuine mistake, but the Electoral Act takes that into account. Here’s S209(B)(2):

A candidate who files a return under section 209 that is false in any material particular is guilty of

The return was false, as it omitted $178,000 of donations.

a corrupt practice if he or she filed the return knowing it to be false in any material particular

As it was a genuine mistake (he thought the return was only for donations in 2023, and didn’t realise it was for his entire candidacy) the Police are correct not to regard the false return as a corrupt practice.

an illegal practice in any other case

So the law is designed so that there is a lesser offence for accidental false returns. But there is a way to escape even that:

unless the candidate proves that he or she had no intention to misstate or conceal the facts; and he or she took all reasonable steps in the circumstances to ensure that the information in the return was accurate.

Now again the candidate had no intention to misstate but to escape an illegal practice you also need to have taken all reasonable steps to ensure it was accurate.

It is contestable whether all reasonable steps were taken, such as seeking advice. As it is contestable, I think the Police should have laid a charge of an illegal practice, so that the court could decide is all reasonable steps were taken. It could well be that they decide in the candidate’s favour, but I want a court to decide that, not the Police.

David Farrar runs Curia Market Research, a specialist opinion polling and research agency, and the popular Kiwiblog where this article was sourced. He previously worked in the Parliament for eight years, serving two National Party Prime Ministers and three Opposition Leaders.