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Democracy denied – Labour’s saddest failing

30 November 2018 Leave a comment

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Labour’s most tragic failing to date has largely flown under the media radar: to reinstate the right of prisoners to vote. Labour’s inaction is made worse in the knowledge that it would have taken little effort and very little cost to undertake.

In 2010, as part of it’s get-tough-on-crime rhetoric, National passed the Electoral (Disqualification of Sentenced Prisoners) Amendment Act. It’s intention was clear enough:

The bill proposes to remove the right of a person serving a term of imprisonment of less than three years to register as an elector.

Previously, the Electoral Act 1993 had disqualified prisoners from voting those “detained in a prison under a sentence of imprisonment for life, preventive detention or for a term of three years or more“.

The Act was first proposed by National MP, Paul Quinn. Mr Quinn was one of National’s few Maori MPs at the time, and was struggling to make a name for himself in Parliament. In both the 2008 and 2011 general elections he finished second in the Hutt Electorate to Labour’s Trevor Mallard. By 2011 he had dropped seven places on National’s Party List and did not make it back to Parliament as a List MP.

The irony of Mr Quinn’s sponsoring of the Electoral (Disqualification of Sentenced Prisoners) Amendment Bill should not be lost on anyone. As a Maori MP and Treaty negotiator for Ngati Awa, his Bill would target and disenfranchise a predominantly Maori prison population;

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Attorney General Chris Finlayson – one of National’s well-respected moderates and an uncommonly insightful member of Parliament – was scathing of Quinn’s Bill. In a report presented to the House, he attacked the Bill as “unjustifiably inconsistent”, “not rationally linked”, having “irrational inconsistencies”, “irrational and irregular”, and creating “irrational effects of the Bill … disproportionate to its objective”.

He pointed out several examples of irrational inconsistencies;

“The blanket ban on prisoner voting is both under and over inclusive. It is under inclusive because a prisoner convicted of a serious violent offence who serves a two and a half year sentence in prison between general elections will be able to vote. It is over inclusive because someone convicted and given a one-week sentence that coincided with a general election would be unable to vote. The provision does not impair the right to vote as minimally as reasonably possible as it disenfranchises in an irrational and irregular manner.”

Minister Finlayson concluded that “the blanket disenfranchisement of prisoners appears to be inconsistent with s 12 of the Bill of Rights Act and that it cannot be justified under s 5 of that Act“.

Writing in his regular on-line column, Gordon Campbell also pointed out bizarre contradictions inherent in Quinn’s Bill;

Hidden in the majority verdict though, is this gem of illogic : “The Electoral Enrolment Centre has proposed working with the Department of Corrections to develop a national procedure to encourage prisoners to re-enrol upon release from prison.” Got that? The centre-right faction on the select committee wants officialdom to devise a new bureaucratic programme to re-register prisoners all over again, once they’re out of jail. First, they want to treat prisoners as non-persons and deny them the vote – and then want to set up a nationwide programme to re-ignite the same motivation that they’ve just gratuitously chosen to dampen. If there was a prize for political stupidity and bureaucratic proliferation in the first term of the current government, this Bill would have to be a prime contender. Prime Minister John Key clearly needs to take heed of the verdict of his Attorney – General, and advise the National caucus to vote against this measure.

Quinn may have vanished from Parliament (and from most people’s memories), but the chilling legacy he left behind in that one piece of ill-considered legislation has caused on-going social harm.

Despite Minister Finlayson’s warning, National and ACT passed the legislation 63 votes to 58 against. The Maori Party and Peter Dunne – National’s coalition partners – voted with Labour, the Greens, and the Progressive Party (Jim Anderton).

Labour MPs were vociferous in their opposition to Quinn’s Bill.

Lianne Dalziel:

“We know why this bill is being introduced: it is called dog-whistle politics. There is nothing worse in this House than to see matters of substance raised in a debate such as this. I take the strongest possible exception to using an amendment to electoral law to argue this dog-whistle position to attack people who are in prison at a particular time.

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I say that getting marginalised people in our society on to the electoral roll is one of the hardest things that we have to confront when we try to sign up people during the election campaign. Every member of this House will know how much resource we put into the Electoral Commission to make sure that people are on the roll in the lead-up to both the local-body elections, which take place this year, and the general election, which takes place next year.”

Charles Chauvel:

“The Electoral (Disqualification of Convicted Prisoners) Amendment Bill is nothing more than the latest in a long line of dog-whistle attempts to make the Government, the National Party, and its ACT Party fellow traveller over there seem tough on crime. This House should be gravely concerned that some of its members can come in here and propose legislation for those reasons, without any regard for its practical implications. Those members would place political image above fairness, above the value our society places on the civic duty of voting, above the effectiveness of our electoral roll, and above prisoners’ reintegration into society upon release…

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This bill has no intention other than to make the Government look tough on crime.”

Chris Hipkins:

“This bill will disenfranchise them from society even further.

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We spend so much time getting people on to the electoral roll in the first place, and some of the people who are the most difficult to get on to the roll in the first place are the people who are disenfranchised from our community. We struggle to get the people who are more likely to go to prison on to the electoral roll in the first place, yet this bill removes them from the electoral roll. It is not justified. It will further marginalise them from our community.

Tough on crime rhetoric is the easy part. Dealing with the underlying social causes of criminal offending, the disenfranchisement from society, and the total feeling of anger that exists within many of the people in our prisons is something we have to think long and hard about. We do not do a good job of this, because the political rhetoric is too hard on any side of this political debate. It is very difficult to deal with this issue in a way that will look good on the news and will make people likely to vote for us. Yes, there are votes in being seen to be hard on criminals. There are very few votes, unfortunately, in dealing with the root causes of crime and criminal offending, because they are not easy and they do not fit on a bumper sticker.”

Clayton Cosgrove:

“… The truth about this bill, which every person who came before the select committee—including David Farrar, although he supported it—agreed on, is that it will do nothing to help victims. This bill will do nothing to stop recidivism. It will do nothing to stop reoffending, and there is no evidence that it will. This bill will do nothing to change prisoner behaviour. Every submitter bar the member Paul Quinn admitted that this bill was simply a political pamphlet.”

Grant Robertson:

“This kind of legislation is the simple stuff, the meaningless stuff. The hard work of the criminal justice area in trying to make sure that we rehabilitate people and reintegrate them into society is not what we hear from National. 

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The true test of being committed to democracy is to say that even if people have committed some of these crimes, we still fundamentally believe that they have a human right to vote. If we want people to rehabilitate and reintegrate into society, we need to give them a chance to be involved in society. Virtually every person who is covered by the extension of this law, the 2,000 or 3,000 people who are sentenced each year to less than 3 years in prison, will end up back in society. We are not talking here—though with the mistake that National has made, it almost is—about people sentenced to life imprisonment. That is already in the law. Every single one of the people to whom this extension applies will be back in society. What we should be doing is working out how we reintegrate those people into society and how we contribute to rehabilitation. Instead, we have petty, spiteful legislation that does nothing to make our communities safer.”

Carmel Sepuloni:

“I look at the Electoral (Disqualification of Convicted Prisoners) Amendment Bill and think that it is so incredibly trivial and insignificant. The bill will bring about no change, and no positive repercussions, for New Zealand society.

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The one question that I have to ask when I look at this bill, given that it is a law and order bill, which has gone through the Law and Order Committee, is whether this bill will act as a deterrent to crime. I think the answer is actually no. I cannot envisage any person who is incarcerated, or any person who is on the verge of committing a crime, thinking: “Oh, I had better not commit this burglary; otherwise I will go to prison and lose my right to vote!”. The reality is that for all of us in this House to vote is a right, and for many other people around the world it is an absolute privilege to have the right to vote. But I assume that many of the people who are incarcerated may not actually see voting as being one of the priorities in their lives. In fact, I wonder how many of those people who are incarcerated who actually exercise the right to vote have actually felt a sense of loss when they have been incarcerated and lost that right to vote. This bill seems rather insignificant and almost a complete waste of time in regard to what that member, Paul Quinn, was attempting to do.

When we look at whether it could act as a deterrent to crime, we see that obvious common-sense dictates that actually, no, it probably will not.”

Then-Maori Party MP,  Hone Harawira, was no less scathing of the Bill;

“Tēnā koe, Mr Assistant Speaker. Huri rauna kia ora tātou katoa e te Whare. This bill, the Electoral (Disqualification of Convicted Prisoners) Amendment Bill, to remove the right of anyone in jail to vote is a direct attack on the democratic freedoms of people we should be trying to help. It is an assault on the intelligence of ordinary New Zealanders. It is another in a raft of misbegotten, panicked pieces of legislation that are driving this country over the precipice into the mindless depths of right-wing insanity.”

Green MP, David Clendon, seemingly had to remind our elected representatives – especially those in government – that voting was core and fundamental to democracy;

“The right to vote, the commission said, is considered fundamental to representative democracies… It [the Electoral (Disqualification of Convicted Prisoners) Amendment Bill] is at odds with the concept of democracy.”

In 2014, “jailhouse lawyer”, Arthur Taylor, challenged the National government’s law in a Court of Law.

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In July 2015, the High Court found in Taylor’s favour. Justice Heath reasserted Attorney General Finlayson’s determination that banning prisoners from voting was  inconsistent with the Bill of Rights and unjustified;

“The purpose of a formal declaration is to draw to the attention of the New Zealand public that Parliament has enacted legislation inconsistent with a fundamental right.”

In 2017, the Court of Appeal also determined that the law was unfair, unjustified, and inconsistent with the Bill of Rights.

National refused point blank to repeal the law. Said Bill English;

“If they raise significant policy issues we’d look at them, but up until now we haven’t seen a reason to change the law.”

Then came the election last year and the National government was swept away. A Labour-led Coalition could finally undo a bad law.

Or so you would think.

On 9 November, after another victory by Arthur Taylor in the Supreme Court, Coalition Justice Minister, Andrew Little issued a response;

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Minister Little said;

“It’s not that much of a priority.”

It’s. Not. That. Much. Of. A. Priority.

Think about that for a moment: “It’s not that much of a priority.”

According to Minister Little, the very foundation of democracy – voting – is “not that much of a priority.”

Attempting to re-engage a marginalised sector of our society by encouraging civic responsibility is “not that much of a priority.”

In the year that is the 125th anniversary of women’s suffrage in New Zealand –

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– voting by a disenfranchised, disengaged section of our society is “not that much of a priority.”

Overturning a bad law “not that much of a priority.”

I sincerely hope that Minister Little did not understand the full implications and that he mis-spoke. Because when an elected representative declares that righting a wrong – such as citizens stripped of their vote – is “not that much of a priority”, they are demonstrating a callous disregard for our democratic traditions that defies understanding.

Clendon, Harawira, and others were correct to describe Quinn’s Bill as a direct attack on the democratic freedoms of people. The right to vote is the most basic cornerstone of a true, participatory democracy. Nothing else comes close to the critical importance of the universal franchise.

Only in countries where a notional facade of democracy exists in name only, is the right to vote regarded with similar cavalier disregard. In both Russia and the United States, vested interests have actively undermined participatory democracy. In China, voting is limited to one party. Britain is still locked in a feudal-era First Past the Post system.

When the National government’s own Attorney General – Chris Finlayson – described the removal of the right for prisoners to vote as “unjustifiably inconsistent with the electoral rights affirmed by s12 of the Bill of Rights Act“, then we are left with only one conclusion: it was bad law from the start.

Minister Little was completely and utterly wrong when he said it was “not that much of a priority.”

It should be the highest priority for any nation professing to be a participatory democracy.

If the former National government could abrogate workers rights by changing their status from employees to “contractors”, with an odious piece of legislation passed in just 48 hour from First Reading to Royal Assent – then it should not be an insurmountable task to abolish the Electoral (Disqualification of Sentenced Prisoners) Amendment Act before the house rises this year.

In fact, by next Friday would be good.

Minister Little, tear down this bad law.

Minister Little, do it now.

Make it a priority.

 

 

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References

Legislation: Electoral (Disqualification of Sentenced Prisoners) Amendment Act 2010

Ministry of Justice: Report of the Attorney-General under the New Zealand Bill of Rights Act 1990 on the Electoral (Disqualification of Convicted Prisoners) Amendment Bill

Parliament: Electoral (Disqualification of Sentenced Prisoners) Amendment Bill

Wikipedia: Paul Quinn

NZ Herald: Cross-claim endangers settlement

Department of Corrections: Prison facts and statistics – September 2011

Parliament: Electoral (Disqualification of Sentenced Prisoners) Amendment Bill — Third Reading

Parliament: Electoral (Disqualification of Convicted Prisoners) Amendment Bill — First Reading

Parliament: Parliament: Electoral (Disqualification of Convicted Prisoners) Amendment Bill — Second Reading

TVNZ: Jailed bush lawyer asks High Court for right to vote

Radio NZ: Prison vote law breaches human rights – judge

Mediaworks/Newshub:  No voting in prison ‘unfair’ – Court of Appeal

Radio NZ: Prisoners’ right to vote currently not a priority for Parliament – Little

Ministry for Culture & Heritage: Suffrage 125

Legislation: Employment Relations (Film Production Work) Amendment Act 2010 (aka “Hobbit Law”)

Acknowledgement

Scoop media: Martin Doyle Cartoon – Voting sucks

Additional

Radio NZ: Protest over prison voting ban

Other Blogs

The Daily Blog: Prisoner Rights Blogger wins for Human Rights

Green:  Prisoner voting ban needs to be repealed

The Green Blog: Prisoner voting disqualification and the Bill of Rights Act

Public Address: Fact-checking Parliament – more prisoners can vote than they think

Werewolf: Robbing the Vote

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It’s a measure of the times we live in that neither the media nor New Zealanders in general seem worried that parliament can ‘remove’ rights supposedly guaranteed under our Bill of Rights. Prisoners are themselves victims of a serious constitutional crime. Given our noble history of women’s suffrage, it’s amazing no women have spoken up on behalf of women prisoners.” – Martin Doyle, cartoonist, 29 January 2015

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This blogpost was first published on The Daily Blog on 25 November 2018.

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A possible solution to Party campaign funding rorts

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1. Party donations

As the law currently stands with regards to party donations, there are set limits to election spending. According to the Electoral Commission;

Expenditure limit

A registered party’s election expenses during the regulated period for the 2017 general election (23 June to 22 September) must not exceed $1,115,000 (including GST) plus $26,200 (including GST) per electorate contested by the party.

If a registered party does not contest the party vote, its total election expenses cannot exceed $26,200 (including GST) for each electorate candidate nominated by the party.

The candidate election expenses regime does not apply to people who are list candidates only. Any spending by those candidates promoting the party is an election expense of the party and must be authorised by the party secretary.

Party limits are separate from the expense limits applying to electorate candidates.

The issue of donations is more complicated;

Party donations and contributions to donations of more than $15,000 (including GST) are required to be declared in the party’s annual return of donations. A series of donations, or contributions of more than $1,500 to donations, made by one person that adds up to more than $15,000 must also be declared.

Fundraising activities are also covered;

Raffles, stalls and other fundraisers

A supporter providing a party with free cakes or other goods or services to use for fundraising is not making a donation for the purposes of the Electoral Act if the value of the items given is worth $1,500 or less. Purchasers of raffle tickets and cakes from a cake stall are not ‘donors’ as they are not making a donation to anyone. The total proceeds of a raffle or a cake stall for a party’s campaign are treated as a donation. The person who runs the raffle or cake stall will normally be the donor.

If the total funds from the raffle or cake stall are over $15,000, then the party’s donation return must include the name and address of the person who ran the fundraiser and subsequently donated the proceeds, along with the total amount given and the date that the donation was received by the party secretary.

It would be a fairly profitable “chook raffle” or “cake stall” to raise $15,000. That’s a very expensive chook. And a truck-load lot of cupcakes.

2. Dodgy dealings

Fundraisers such as National’s $5,000/plate dinner event at ‘Antoine’s’ restaurant in Parnell, Auckland in 2014 raised eyebrows, forcing then-PM John Key to defend  his Party’s activities;

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Fundraising events using fronts such as ‘Antoine’s‘ restaurant are nominally legitimate – if dubious – methods to avoid identifying donors to political parties. Donation returns for National in 2010 and 2011 showed tens of thousands of dollars being funnelled through the restaurant;

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There is currently little protection from circumventing disclosure requirements by using ‘fronts’ such as Trusts and private companies.

Only direct donations are monitored.

Only where non-disclosure or false information is provided is the law is unequivocal regarding a donation;

If the party secretary knows, or has reasonable grounds to believe, that the donor has failed to supply information about contributions, the whole donation must be returned to the donor.

And,

Parties are not allowed to retain anonymous donations exceeding $1,500. An anonymous donation is a donation made in such a way that the party secretary who receives the donation does not know the identity of the donor and could not, in the circumstances, reasonably be expected to know the identity of the donor. [See section 207 of the Electoral Act]

If you receive an anonymous donation greater than $1,500 you may retain $1,500 of that donation. The balance of the donation must, within 20 working days of receipt, be paid to the Electoral Commission for payment into a Crown bank account.

NZ First was forced to return a portion of one such donation in 2008 when it received a donation of $3,690.02 from an unknown donor who was obviously providing bogus details;

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The possibility of a deliberate set-up by a political opponent should make all Party Secretaries highly cautious when dealing with donations where the donor’s details are dubious. The Donghua Liu Affair showed vividly what can happen when a Party is accused (falsely in this case) of rorting the Electoral Act.

But where a donor providing larger donation is known to Party leaders it becomes easier to circumvent legal requirements for disclosure. Recent allegations from Jami Lee Ross that businessman Zhang Yikun donated $100,000 to National, via the Botany Electorate of that Party, and was broken up at some point into smaller portions below the $15,000 threshold for mandatory declaration, are being investigated by the Police.

The apparent ease by which the Electoral Act’s requirements for disclosure can be flouted is disturbing. It opens up dangerous vulnerabilities for corruption; undue influence by big business and the wealthy, and candidates-for-money.

The US shows us where Big Money buying influence leads us – and it is not a good place.

Problems surrounding rorting the party donation system need to be urgently addressed. It is harder to cut out rot once it has set in; corruption is hard to dislodge once it has taken hold.

3. Solutions

Suggestions for tightening up legislation has ranged from lowering the limit for mandatory disclosure to $1,000 to full public funding of political parties by taxpayers.

As Green Party co-leader, Marama Davidson warned;

“The fact of the matter is, as long as political parties are accepting donations from powerful vested interests, there is a constant risk of corruption.

It is clear that those vested interests have a tangible influence on the decision making of political parties. This is a threat to democracy and should change.

Political parties are an important component of our democracy and if increasing state money for electioneering removes the influence of powerful vested interests, then it should be considered.”

Writing for Interest.co.nz, David Hargreaves has gone further, calling for a total end of private donations to political parties;

But there’s no question also that these ‘donations’ can be used by those making the donation to seek influence. If a donation ‘buys’ the people giving the money access to the political party concerned (such as dinner at someone’s house) then the opportunity is there to carry influence.

So, you get the situation in which the person making the donation wants to be able to influence proceedings – without the public at large knowing that – while the party receiving the donations doesn’t want the public at large to know that they are getting money from places that might suggest they are being subjected to particular influence.

There has to be obvious concern if particular vested interests are pumping money into political parties in order to seek influence. Now that could be say religious groups. It could be people from other countries – and what if other countries are seeking to assert their so-called ‘soft power’?

This all has to be taken very seriously.

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It’s the lack of transparency about the current system that’s the real problem.

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I increasingly think ‘donations’ should be banned. I think it should be illegal for anybody to contribute money to a political party.

Activist group, Action Stations has called for three significant reforms for Party donations:

  • All donations over $1500 should be declared and the donors named.
  • Loopholes that allow fundraising through trusts, dinners, and charity auctions to remain anonymous should be closed.
  • Donations should be publicly disclosed in real time, to allow greater and immediate scrutiny.

4. There is a further option to tighten up controls on donation.

This blogger proposes that all donations above a certain amount (whether $1,000 or $1,500) be made directly to the Electoral Commission, using internet banking. For those not au fait with internet banking, donations could be available by other means – NZPost, etc – but still made directly to the Electoral Commission.

Each donation would be made to a  nominated Party or Electorate Candidate using drop-down menus on the Commission’s website.

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Donor’s details can be matched with their bank account details. Once verified, the donated amount is lodged in a holding-account and the donor’s name  made public in real-time.

Donations through dinners, auctions, etc, can be lodged directly during the event, into the Commission’s account, disclosing the details of the donor at the dinner or auction. (Again, if the donor’s details do not match their bank account details, the donation is automatically rejected.)

As per Action Station’s demand, donations through Trusts would be banned. Any method that does not provide transparency would not be permitted through the Commission.

Parties would be banned from handling funds greater than $1,000 or $1,500.

This still allows for low-level fund-raising such as sausage sizzles, cake stalls, and chook raffles. (Cake stalls raising $15,000 would be scrutinised to see what the hell those ‘cakes’ were made from.)

Once verified, funds would be disbursed to relevent Parties to meet campaign expenses.

Any funds over the Party and Electorate cap (see above) would be held in escrow for the following election.

Interest gained from holding these funds in the Electoral Commission’s account would self-fund the system.

The obvious primary benefit would be that it makes it harder – though not impossible* – for political Parties to rort the system.

(* A wealthy donor could still, theoretically give smaller amounts to friends and family, who then make said donations to a Party or Electorate Candidate via the Commission’s account. A bank would have to implement protocols to detect suspicious payments. Any police investigation; subsequent prosecution and conviction, would have to have financial penalties so severe that anyone contemplating such a scheme would think very carefully before proceeding.)

The above proposal does not cover every aspect of donations (such as goods and services) to political parties – but it’s a start.

If Jami Lee Ross has achieved anything, it is casting the full glare of public scrutiny over Party donations. His methods may have been unorthodox – but he’s got our attention. We can no longer feign lack of awareness of this dark shadow over our democracy.

The rest is up to us, as a nation, what we do now.

Otherwise, we end up with more-of-the-same;

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For sale: one parliament.

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References

Electoral Commission: Part 3 – Election expenses, donations and loans

Mediaworks: Key not talking about fundraising dinner

Electoral Commission: National_Party_donations_2010.pdf

Electoral Commission:  New Zealand National Party donations 2011.pdf

Electoral Commission: NZ First Party Donations Returns 2008

Fairfax media: Show us the money: Donors bankrolling Greens lead way in fronting up to public

Interest.co.nz: We should urgently consider changes to the way our political parties are funded

Action Stations: Fix Political Donations

Scoop media: Stop powerful vested interests and preserve democracy

NZ Herald: Bryce Edwards – Should taxpayers fund political parties?

Fairfax media: Secret donors – Buck stops here

Additional

The Good Society: Max Rashbrooke – Donations to political parties 2011-16

Electoral Commission: Party Donations by Year

Fairfax media: Over half of major political cash comes from donations of over $15,000

NBR:  Key under fire for Antoine’s donations

Other blogs

The Standard: Ross saga quiescent, but donations scandal needs addressing

Previous related blogposts

National’s fund-raising at Antoine’s – was GST paid?

Some troubling questions about the Ross Affair

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With acknowledgement to Sharon Murdoch

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This blogpost was first published on The Daily Blog on 31 October 2018.

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