KEY POINTS:
A booklet produced by Labour and paid for from parliamentary funds may be one of the first test cases put before the Electoral Commission since changes to electoral laws.
The commission will have to determine if it is, first, an election advertisement and, secondly, if it breaches the new Electoral Finance Act.
If it does breach the act, Labour's secretary, Mike Smith, could be prosecuted and liable for a fine of $40,000 because the law requires all political advertisements to be authorised by a party or candidate's financial agent.
There would be no parliamentary consequences if it were found to be an election ad because MPs have liberalised their advertising rules to allow virtually anything as long as it doesn't explicitly seek votes or money.
In parliament yesterday, National produced the 12-page booklet - titled We're Making a Difference for Everyone - and said it was distributed at Waikato University last week, in the regulated period.
It sets out Labour's key achievements in Government and because it doesn't seek votes, would pass the parliamentary test without penalty.
But it may also pass the electoral test of "election advertisement" which says advertising can be any form of words or graphic that can reasonably be regarded as encouraging or persuading voters to vote or not to vote for a particular candidate or party - and which therefore needs authority.
Deputy leader Bill English said National was considering forwarding the booklet to the Electoral Commission with a complaint that it was election advertising under the broader definitions but was not authorised.
He also disclosed that the general manager of Parliamentary Service, the organisation that signs the cheques for MPs' publicity material, warned all MPs this week that unauthorised spending on election advertising was a serious offence under the act.
In an email to parties on Monday, Geoff Thorn refers to a "potential overlap" between publicity paid for by Parliamentary Service and the Electoral Finance Act's definition of election advertising.
The overlap meant "there may be cases where a member of a party needs to declare the cost of publicity paid for by the Parliamentary Service as an election expense".
The Electoral Finance Act exempts from inclusion as an election expense activities conducted by MPs in their capacity as MPs, but that is open to interpretation.
Justice Minister Annette King told Parliament the booklet was produced in October and paid for in November, before the Electoral Finance Act took effect on January 1.
She held up a questionnaire and leaflet produced by National Nelson MP Nick Smith, saying it would have required authorisation as well. Dr Smith said it had been produced and distributed last year before the act took effect.
Ms King challenged National to take it to the Electoral Commission.
She also challenged National to send to the commission a DVD the party's leader, John Key, produced last year, because it did not have authorisation on it.
"It came out last year, some people still have it and it can still be played this year."
She said it had been distributed in Auckland in January.
The commission's chief executive, Helena Catt, said last night that it had received no ads to consider yet but if it did, it would look at them at its next meeting on April 2.
Dr Catt said the commission would not be giving indicative rulings or opinions.
But it had discretion about whether to refer material to the police.
She agreed that there could be an "overlap" - "that some of the things funded by parliamentary money may also be election advertisements".
"Election advertisements are not defined by where the money comes from. They are defined by what they say. So there may be overlaps."
