Keith Ng has an excellent post on the merits of John Banks' position with regard to his declarations regarding election donations. But don't take my word for it, go and read it.
So, on the finer points:
This is not about the strengths and weaknesses of electoral law. John Banks was required to sign a declaration regarding his election finances when he contested the Auckland mayoralty in late 2010. This is about whether he should have signed off his declaration or not. The questions are:
- did John Banks make a false declaration? And if he did, what mitigating circumstances exist, or
- did John Banks take all reasonable steps to avoid making a false declaration?
Anonymous donations are a side issue.
Kim Dotcom is a salacious side issue.
Mr Banks apparent mental frailty* is possibly a mitigating factor, but also a side issue.
To the letter of the law, and giving Mr Banks the fullest possible benefit of the doubt, it may be that Mr Banks is in the clear. But in terms of public opinion, this reeks to high heaven.
The ethical issue of taking all reasonable steps is an interesting one, too.
A brief diversion. On the radio this morning Mr Prebble defended his successor vigorously. He used the meaningless "they did it too" argument and used the example of Winston Peters in 2008 as a precedent. But that's not a good precedent, because that was about donations to political parties. This is about signing documents improperly.
The best example of "they did it too" in this case is David Parker. In 2006 he resigned all his ministerial portfolios after it was alleged he filed a return to the Companies Office that was incorrect. The document that caused Mr Parker to stand down affected a few individuals, whereas the document that Mr Banks signed affects all the citizens of Auckland. And transparency around democracy is more important than technicalities of company law.
Mr Banks's actions are of much greater significance than those of Mr Parker. Mr Parker had the good grace to resign his portfolios at the merest whiff of improperness.
And that's the real precedent.
Footnote - Mr Parker was found to have not acted improperly. It is possible that the same could happen to Mr Banks.
Back to the issue of ethics - what should we have expected of John Banks? What would be reasonable?
Democracy is priceless, it protects us from tyranny and it is not unreasonable to expect our leaders to meet and exceed high ethical standards both when running for office, and in their actions while they are in office. It is reasonable to expect high standards.
A donation could be considered to be anonymous when the donor took reasonable steps to conceal their identity. This would show:
- a conscious desire from the donor to retain their privacy, and
- the existence of firm beliefs held by an individual and action to support those beliefs, and
- understanding that there would be no real or apparent influence on the beneficiary of the donation.
Where a donor is does not meet one of these criteria, their right to anonymity lapses. The critical point is the last one. Local government democracy is meant to be open and democratic, and demonstrably free from cronyism. To protect the public from corruption, it is essential that the citizens can see who is influencing their elected representatives (except for ECan, but that's a different story) and the burden of proof lies with the donors and their beneficiaries (the candidates for public office) to show that they are acting properly. It is reasonable to interpret the law in the favour of the less powerful, and it is reasonable to place the onus on people in positions of power to prove they are worthy of office.
The donations from Sky City and Kim Dotcom (or his company) could have been declared. It was possible for Mr Banks to do a quick reconciliation, a few phonecalls would have done it. His argument is, essentially, that through his own laziness, wilful ignorance and obfuscation, he has met the letter of the law. It is reasonable to expect our local representatives to be diligent, informed and forthcoming.
On the question of ethics Mr Banks has failed miserably. I hope the Police refer the matter on, and that the Court takes a very dim view of Mr Banks's attitude towards the most fundamental of our institutions.
I will not even raise the issue of Mr Key's handling of the ethical aspects of the problem, beyond saying his understanding of ethics is appalling and well beneath the standard we should demand of a Prime Minister.
What would I like to see. Well, I'd like to see Mr Banks hold on for dear life to his ministerial warrants and seat in Parliament. And I'd like to see Mr Key defend him in the style that Ms Clark defended Mr Peters, back in 2008.
*Mr Banks's mental state is questionable. As I am completely without training or experience in the field, I am not in a position to make a judgement or offer an opinion. The behaviour of Mr Banks over the last week has been bizarre, and may be good grounds for Mr Key to relieve him of his warrants without reference to the false declaration issue.
Tim Finn - Feeding the Gods, 2001