Rudman's city: Fair trading laws for politicians a titillating thought

By BRIAN RUDMAN

The Water Pressure Group's attempt to sue a group of politicians for alleged breach of promise was a delicious thought. Who of us could resist the concept of our leaders slowly proceeding through the courts, squirming away in the dock trying to justify their every policy twist and backslide?

As Prime Minister Helen Clark has said, by the time of the 1999 election we voters had good reason for being cynical about the promises of campaigning politicians.

"They'd been lied to for 15 years solid, and they just never seemed to get what they'd voted for," said she.

However, as Judge Fred McElrea points out in dismissing the water group's petition to overturn the results of last October's election in the Avondale-Roskill ward of Auckland City, the place for a politician's credibility to be judged is at the ballot box, not in a court.

The group had argued that four Auckland Citizens and Ratepayers Now candidates had publicly stated during the campaign that they opposed the privatisation of Auckland water supply while at the same time signing a pledge to support the future privatisation of the water supply.

The group argued that the public statements misrepresented the group's position about the future ownership of Metrowater and this "was intended to be a fraudulent means of inducing Ms Bright [Penny Bright, the leading group activist] and other members of the group to vote for ACRN".

Anyone who has encountered the fiery Ms Bright will appreciate how improbable a task that would have been.

However, the group argued that such a fraud constituted an act of "undue influence" on potential electors and was therefore an offence under section 127 of the Local Electoral Act 2001.

Putting aside the substantive case for a moment, the group's case bombed for the simple technical failure to provide the 10 eligible petitioners required by law. Only five of the 10 people signing the petition came from the Avondale-Roskill ward.

However, the judge rejected the fraudulent inducement allegation as well, saying the petition "unfairly takes excerpts from the ACRN philosophy and policy principles out of context" and that claims the candidates supported future privatisation were not proved.

Discussing the possibility of confusion within the public mind about the meaning of "privatisation" the judge said "Even if a candidate took advantage of such confusion, knowing that different interpretations might be put on the meaning of his or her words, I do not see how that can be regarded as any sort of electoral irregularity or misrepresentation.

"Indeed some might say that it is of the very nature of politics that candidates will promote their policies in this way, unrestrained by any political equivalent of the misleading or deceptive conduct provisions of the Fair Trading Act relating to commerce."

He emphasised he was not suggesting that ACRN candidates had deliberately taken advantages of any such ambiguities, but "even if they had, it could not be regarded as an electoral offence or irregularity".

Judge McElrea emphasised the constitutional separation of powers between the political process and the courts and agreed with an earlier judgment that the courts did not have the right to revise the results of democratic election on broad moral or philosophical grounds.

"The courts," said Judge McElrea, "are not an appropriate guardian of the conscience of political candidates ... The sort of matter complained of here is not something that judges should be inquiring into. Even if the candidates had made electoral promises which were inconsistent with loyalty pledges made to their party, that could be relevant in one of two ways.

"First it might show poor character on the part of the candidates. In that case the remedy is for others to expose the alleged deficiency of the candidate to the public and leave it to the public to make its decision at the ballot box.

"The second possible relevance might be be the likelihood of the candidate breaking his/her electoral promise.

"However, that matter is also one to be judged at the ballot box - at the following election, by which time the voters will have been able to see whether the election promise was broken or not. It should not be judged in advance by a court."

The judge referred to a press statement in which the petitioners' barrister, Graeme Minchin, had said the group's petition would encourage politicians to be more honest and deter them from saying one thing and doing another.

Judge McElrea observed that if Parliament "intended to allow courts to preside over such matters as the honesty and integrity of politicians and their political promises, then it would have needed very clear words indeed to achieve that end because it would be inconsistent with the traditional separation of powers between the political process and the judicial process".

He's right, of course, no matter how titillating the thought of a Fair Trading Act for politicians sounds.