JOHN BOSCOWEN: Freedom of Speech Trust Newsletter-Edition 4

Freedom of Speech Trust Newsletter No. 4
By John Boscawen

15 August 2008

Dear Darren,

Campaign goes to the Sunday newspapers

We took the campaign to repeal the Electoral Finance Act to last weekend’s newspapers with full page ads in each of the Sunday Star Times and the Herald on Sunday.

The ads focused on the following issues:

1. Parliament ignored both the Human Rights Commission and the New Zealand Law Society in passing the Act.

2. New Zealanders have been subject to a form of election year censorship never seen before in this country. The ad itself had been carefully drafted to ensure that it could not be seen as an “election advertisement”. There was much that we dare not say and that was censorship pure and simple.

3. The Act has had a profound impact on how political parties campaign and many are afraid in case they overspend. Labour, NZ First, the Greens and the Progressives have all fallen foul of it. (With the Progressives recently having had an ad referred to the Police for possible prosecution).

4. The law regarding third parties is uncertain and complex and limits those who wish to be involved in the election campaign to spending less than half that recommended by the Human Rights Commission.

5. The promise of greater transparency that cannot be circumvented is simply not true. For example if the Vela family had ten companies each could give up to $10,000 of its own money to New Zealand First and this $100,000 would not need to be disclosed (this is not a hypothetical example as the New Zealand Companies Office records suggests that there are eight or more Vela named companies with a further five related to the Vela owned New Zealand Bloodstock group).

6. At the same time that Parliament severely limited what you and I can spend and do in election year it passed another law giving political parties more taxpayer’s dollars for their own election campaigns.

A copy of last Sunday’s ad is attached to this email. Please forward it to your friends and colleagues or print it off and post it on a noticeboard.


What needs to happen now?

The Act needs to be repealed before this years election otherwise the election risks becoming a farce, marred in legal challenges both before and after the election. As a very minimum the third party spending limit should be increased to $300,000 as recommended by the Human Rights Commission.

Dominion Post Editorial – Monday 11 August “System to suit an African despot”

Under this heading The Dominion Post has again called for the repeal of the Electoral Finance Act.

“The act must go. It has had only humour value since January 1 …..The act’s critics foresaw the current muddle. The law is undemocratic and the way it was imposed an exercise in arrogance.”

The Dominion Post is but only one of the newspapers that have spoken out against the Electoral Finance Act. The tragedy however is that it represents far more than “humour value”. It undermines four of our most cherished democratic rights

1. The right to hold free and fair elections.
2. The right to exercise free speech.
3. The right to campaign either for or against the government.
4. The right to be fully informed.


High Court grants strike out application in our case against the Attorney General

Late last year Garth McVicar spokesperson for the Sensible Sentencing Trust, the late Graham Stairmand, then national president of the Grey Power Federation, Rodney Hide, MP and myself commenced legal proceedings against the Attorney General, Michael Cullen seeking a declaration that he had failed in his duty to notify Parliament that the Electoral Finance Bill was inconsistent with the New Zealand Bill of Rights Act (BORA). After the Act was passed we amended our claim to also ask for the Court to make a declaration of inconsistency, on the grounds that the EFA was inconsistent with BORA .

The Crown sought to strike out these claims on the grounds that we had no right to bring them. The strike out application was heard in the High Court in Wellington on 15 May and the Court delivered its decision in late June. The Court agreed with the Crown and struck out both actions. While we were not surprised that the action against the Attorney General was struck out, on the grounds of parliamentary privilege we were both surprised and disappointed that the Court struck out our claim for a declaration of inconsistency. The High Court also relied on an earlier case in 1992 and we anticipated that we would need to go to the Appeal Court to have this overturned.

We have decided to appeal this ruling and the appeal will now be heard by the Appeal Court in Wellington on 23 October.

While this hearing will probably be before the election, there is no guarantee we will get a decision before then, and in any event, even if we are successful it is very unlikely we will be able to argue the substantive issue before the election.

If you would like to read a copy of our submissions to the High Court on the Crown’s strike out application and the Court’s judgment please email me and I will be happy to send you a copy.

Please forward this email on

No one should be in any doubt about the type of censorship the Electoral Finance Act imposes. It does little if anything to increase transparency over donations that cannot be circumvented. Its real objective is to restrict the right of ordinary New Zealanders to speak out and to campaign either for or against a political party in election year.

Please take the trouble to discuss the issues this newsletter raises with your friends, family and work colleagues.


Regards

John Boscawen
Trustee – Freedom of Speech Trust
021 760 630


Electoral Finance Act coverage @ Political Animal

Tauranga Electoral Finance Act protest goes off
Labour first to break own Electoral Finance Act
Auckland Electoral Finance Act protest
Owen Glenn and Labour Party funding
Labour buys Tim Shadbolt's silence
Victim of Electoral Finance Act forced to shut down website
Extending a middle finger in 2008
Electoral Finance Act: The vote
Historical day as New Zealand loses democracy
Tuesday 18 December 2008: The death of democracy
Mike Moore turns the knife on Electoral Finance Bill
List of MPs who voted for the Electoral Finance Act
Electoral Finance Bill debate continues
Cartoon and comment: Winston Churchill Clark
Electoral Finance Bill: The purpose is clear
Electoral Finance Bill gets stalled in Parliament
Auckland EFB protest gets 5000
Christchurch March against EFB
2nd Auckland EFB protest
Wellington March against EFB
Auckland EFB protest March: Nov 17 2007
NZ Herald gets nasty over EFB


c Political Animal 2008

Helen Clark play comes to the Pumphouse

From the Listener is a run down of a play currently touring New Zealand and now at the Pumphouse on Auckland's North Shore, where I live coincidentally.


It looks like it might be quite a good show and you will probably see me there. Buy Tickets

In 2005, before the last election, essayist Richard Meros used that intrigue as the founding block from which to build a discourse on such topics as Rogernomics, gender studies and bodily fluids. He called the philosophical and satirical result On the Conditions and Possibilities of Helen Clark Taking Me as Her Young Lover. Then, in 2007, mindful of the next election and with funding from Creative New Zealand (thus indirectly from the arts minister herself), actor Arthur Meek and director Geoff Pinfield mined that essay for dramatic possibilities – and struck gold when their one-man show premiered at Bats Theatre in Wellington in January this year.


On the Conditions is now touring nationally. In it, Meek plays Meros, presenting his essay as a PowerPoint-aided lecture and trying to convince us: a) that Clark must take a young lover to ensure her political survival; b) that Clark’s acquisition of a young lover will benefit the country; and c) that he, Richard Meros, between whose brown wool vest and brown tweed trousers exists a certain chemistry, should be that young lover. (The latter conclusion bringing a spontaneous applause from the near-capacity audience on the night I attended.)


Meros, furthermore, intends the tour of his lecture to bring him to Clark’s attention, so that he can gain the proximity necessary for him to persuade her to take him as her young lover.

Absurd. Brilliant. Delightful.

More from The Listener

Buy tickets to Pumphouse shows


c Political Animal 2008

Evidence mounting for a restructuring of ACC

With The National Party promising a long needed restructuring and the element of competition with the Accident Compensation Corporation, the highly inefficient government department continues to provide evidence that it should be privatised completely.

Over the last two weeks, ACC staff were exposed using taxpayer money to get pet grooming for spot and fluffy and day spas and manicures for themselves, a woman who lost all her limbs in a work accident is only allowed a maximum NZ$117,000.00 payout for loss of income, even though she would have made that sum in just one year, and the latest story to hit the media, again, cements ACC as the dinosaur that most know it as.

Mike Gibson, the man caught on video lifting boulders, mowing lawns and doing all sorts of work but officially unable to because of a bad back and getting ACC compensation for it, has not yet been prosecuted by the department and doesn't look likely to anytime soon.

According to reports this individual has been collecting ACC fraudulently for 20 years or more but ACC seem uninterested even with the mounting evidence against him.

These are only three stories that have hit the media, there are thousands more like them that havent. The Mike Gibsons of this world are ripping off the taxpayer and ACC are allowing them to, and the limbless woman not getting what they deserve are the just tip of a well manicured finger.

All this and ACC staff have the best looking pets and finger nails in the land, all courtesy of you and me.

All good reasons to privatise and ACC agrees with that too. The insurance scheme that covered ACC staff for pet grooming etc was provided by Southern Cross.

An efficient, well run private insurance company.


Related Political Animal reading

Labour backs ACC rorts
ACC staff spending on day spas and pet grooming

c Political Animal 2008

Warehouse appeal decision imminent

Since the decision by the Appeal Court to deny Foodstuffs and Woolworths Australia [WOW:ASX] the right to make a takeover for The Warehouse [WHS.NZX] we are half way along the 20 working day period for the appellants to take leave to appeal to the Supreme Court against the decision.

Investors in the company might be thinking a number of possible scenarios.


1. That no appeal will be made

2. That an appeal is taken and won or lost

3. If lost what the prospects are for the company in its current form

4. If won how much shareholders want for their shares

5. Will Stephen Tindall make another play at full private control of his company?

6. If either Foodstuffs/Woollies or the Commerce Commission lose in the Supreme Court will either seek a judicial review?


I'm guessing here but if either Foodstuffs or Woolworths was going to drop an appeal to the Supreme Court I think they would have come out already and put us all out of our collective misery. The fact that nearly ten working days have passed would indicate that lawyers from both companies, as well as The Warehouse itself, would be mulling over the Appeal Court ruling, looking for inconsistencies, mistakes and holes that they could drive a successful argument through in the Supreme Court.

I think there will be an appeal for those reasons.

At present the retail sector in New Zealand isn't looking too bright. Christmas 2008 shopping is looking dim and the prospect for a serious spending upswing isn't likely until well into 2009 in my opinion.

Never fear though!

As always with economics and the economy things do change and the retail sector will pick up and The Warehouse will be stacking up profits once again.

Where things will get really interesting is if Tindall or Foodstuffs/Woollies get control. We will likely see an expansion of the company towards larger format stores that stock more food items- a complete roll out of the "Extra" format in other words.

This is unlikely to happen under the current ownership, as the capital needed will be large and the deep pockets of an owner like Woolworths or a private partnership, along with Tindall will be able to modernise the chain with that big capital base behind them, with the ultimate benefit going to the consumer. This is where the Commerce Commission has erred in my opinion-a significant expansion of The Warehouse is only likely to happen if the company is able to be put up for sale.

The possibility that Stephen Tindall would make a play for full control is a likely one if all else fails. I don't think this can happen until after the tussle between Foodstuffs/Woollies and the Commerce Commission is resolved. It would be nice to see him own his baby outright again though. The question would then be how much would he offer to take control.

Some commentators have said Tindall wouldn't have to bid much higher than the current share price of a round $NZ3.50 per share. I think that is dreaming myself because Foodstuffs and Woolworths both have 10% holdings that cost them considerably more than that and would not accept anything less than what they paid.

Tindall would need the 20% sum of those two companies holdings to make a successful takeover and so the offer to all shareholders would have to be north of the $6.50 price that Woolworths bought their 10% for.

Woollies and Foodstuffs would clearly hold the upper hand in this position.

In the case of a competing bid for The Warehouse by Foodstuffs or Woollies should they ultimately be allowed to bid for the company, it is up to shareholders not to shortchange themselves. Tindall already owns about 53% of the company, so they need to grab his holding, the 10% either of the two bidders owns , so that would leave 27% of shareholders like myself to agree with the price the two big shareholders agree to sell for to take an offer to the 90% threshold and therefore compulsorily take the remaining 10%.

Of course everything could be left completely up in the air for another year or so, after waiting for a Supreme Court hearing, by a judicial review of a decision made in that court.

It has been done before by Foodstuffs in the case of Progressive Enterprises wanting to merge Foodtown's brands with Woolworths NZ in 2002. Woolworth's Australia then bought that merged entity in 2005.

Whatever the final outcome, investors can be sure there will be a considerable wait to get a final decision.

Disclosure: I own WHS shares



The Warehouse Group @ Share Investor

The Warehouse: Is it Time to Bow Out?
Share The Warehouse: What the Fuck is it Doing?
Share Investor Q & A: The Warehouse' Ian Morrice  
Share Investor Q & A: Questions to The Warehouse' Ian Morrice
Long Term View: The Warehouse Group Ltd
Share Investor Short: Warehouse Group yield worth a look
The Warehouse Group: 2010 Interim Profit Review
The Warehouse: Big Brands, Big Opportunities
Warehouse strike opportunity to buy
Long Term Play: The Warehouse Group
Share Investor Short: Warehouse Group yield worth a second look
Woolworths supermarket consolidation an indicator of a move on the Warehouse?
Stock of the Week: The Warehouse Group
Warehouse 2009 interim profit a key economic indicator
When will The Warehouse bidders make their move?
Long vs Short: The Warehouse Group
Warehouse bidders ready to lay money down
The Warehouse set to cut lose "extra" impediment
The Warehouse sale could hinge on "Extra" decision
The case for The Warehouse without a buyer
Foodstuffs take their foot off the gas
Woolworths seek leave to appeal to Supreme Court
Warehouse appeal decision imminent
Warehouse decision a loser for all
Warehouse Court of appeal decision in Commerce Commission's favour
MARKETWATCH: The Warehouse
The Warehouse takeover saga continues
Why did you buy that stock? [The Warehouse]
History of Warehouse takeover players suggest a long winding road
Court of Appeal delays Warehouse bid
The Warehouse set for turbulent 2008
The Warehouse Court of Appeal case lay in "Extras" hands
WHS Court of Appeal case could be dismissed next week
Commerce Commission impacts on the Warehouse bottom line
The Warehouse in play
Outcomes of Commerce Commission decision
The fight for control begins soon

Discuss WHS @ Share Investor Forum - Register free 
Download WHS company reports




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