Bill 11- Transparency in Election Commitments Act

BILL 11

Transparency in Election Commitments Act

Her Majesty, by and with the advice and consent of the Legislative Assembly of New Brunswick, enacts as follows:

PART 1

TRANSPARENCY IN ELECTION COMMITMENTS

Division A

Costing of Election Commitments

Purposes

1 The purposes of this Act are the following:

(a) to increase transparency with respect to election commitments and hold registered political parties accountable for election commitments they make;

(b) to ensure that electors obtain information on the financial implications of the election commitments; and

(c) to promote an atmosphere in which the public does not expect the fulfilment of election commitments for which the cost is not disclosed in accordance with this Act.

Definitions

2 The following definitions apply in this Act.

“advance polling day” means the day fixed in accordance with paragraph 13(2)(e) of the Elections Act. (jour de scrutin par anticipation)

“chief agent” means a chief agent as defined in the Elections Act. (agent principal)

“cost estimate” means a disclosure statement described in paragraph 4(2)(a). (estimation des coûts)

“disclosure statement” means a document produced by a registered political party that relates to the cost of an election commitment of the registered political party and that is required to be filed with the Supervisor and published by the registered political party. (document d’information)

“election commitment” means a statement by a registered political party that, due to the nature of the statement, leads electors to reasonably expect that if the party forms the government, it will implement the policy, program, service or initiative referred to in the statement. (engagement électoral)

“financial implications” means an increase or a reduction in expenses or revenue. (incidence financière)

“fiscal year” means the period commencing on April 1 in one year and ending on March 31 in the next year. (exercice financier)

“general election” means a general election as defined in the Political Process Financing Act. (élection générale)

“leader commitment” means an election commitment made by the leader of a registered political party that (engagement d’un chef)

(a) is recorded and is published by him or her or any other person, and

(b) if implemented, will have financial implications.

“maximum cost statement” means a disclosure statement described in paragraph 4(2)(b). (énoncé des coûts maximaux)

“official representative” means an official representative as defined in the Elections Act. (représentant officiel)

“ordinary polling day” means the ordinary polling day as defined in the Elections Act. (jour ordinaire du scrutin)

“party commitment” means an election commitment (engagement d’un parti)

(a) that is included in the election platform of a registered political party, or

(b) that is published by a registered political party.

“publish” means to make public by or through any media, including a press release, a post on a website or any other public information media. (publier)

“registered political party” means a registered political party as defined in the Elections Act. (parti politique enregistré)

“revenue” means the revenue of the Province as reported in the most recent Public Accounts related to that fiscal year. (recettes)

“scheduled general election” means a scheduled general election as defined in the Elections Act. (élections générales programmées)

“Supervisor” means the Supervisor of Political Financing as defined in the Political Process Financing Act. (Contrôleur)

Application

3 This Act applies to any political party that registers under the Elections Act and remains registered until the day before the advance polling day and that makes an election commitment which is a party commitment or a leader commitment

(a) in the 90-day period preceding the ordinary polling day of a scheduled general election, or

(b) before the ninetieth day before the ordinary polling day if the registered political party restates or renews that election commitment on or after the ninetieth day before the ordinary polling day.

Disclosure of election commitment cost

4( 1) A registered political party shall file with the Supervisor and publish a disclosure statement concerning each election commitment that it makes to implement

(a) a new or expanded program or service,

(b) an expenditure reduction measure,

(d) a revenue reduction measure.

4( 2) The disclosure statement referred to in subsection (1) concerning an election commitment may consist of

(a) an estimate of its cost or financial implications,

(b) subject to subsection (3), if the election commitment relates to a new or expanded program or service, a statement of the maximum cost to which the registered political party commits if it forms the next government, or

4( 3) If a registered political party indicates that an election commitment for which a maximum cost statement has been prepared will also increase or reduce revenue, the registered political party shall also file and publish under subsection (1) one of the following:

(a) a cost estimate with respect to the increase or reduction in revenue; or

(b) a disclosure statement described in paragraph (2)(c).

4( 4) If a registered political party files and publishes a disclosure statement described in paragraph (2)(c), the disclosure statement shall include one of the following statements:

(a) a statement that insufficient information was available to the registered political party to enable it to prepare a cost estimate;

(b) a statement that the election commitment will not have financial implications for the Province; or

(c) a statement that the registered political party declines to prepare a cost estimate or a maximum cost statement with respect to the election commitment.

4( 5) The official representative shall ensure that a disclosure statement is filed and published on behalf of the registered political party as required under this section, and may designate, in writing, the chief agent to fulfil his or her obligations under this subsection.

Additional requirements for disclosure statements

5( 1) A disclosure statement under section 4 shall include the sum of the following amounts:

(a) the estimates of the financial implications of all election commitments for which a cost estimate has been filed and published; and

(b) the maximum cost of all election commitments for which a maximum cost statement has been filed and published.

5( 2) A disclosure statement may deal with more than one election commitment and, in that case, such a disclosure statement shall include a disclosure statement as required under subsection 4(1) with respect to each election commitment and may include the sum of the amounts indicated in all the cost estimates and maximum cost statements included in the disclosure statement.

5( 3) A disclosure statement under subsection 4(1) or 5(2) shall

(a) be in the format prescribed by and be prepared in accordance with the regulations, and

(b) include any other information or documents prescribed by regulation.

5( 4) With respect to an election commitment that will have financial implications for the operating budget of the Province as provided for in the Main Estimates, a cost estimate or a maximum cost statement shall include the anticipated financial implications of the election commitment for the fiscal year in which the election commitment is made and each of the four following fiscal years.

5( 5) With respect to an election commitment that will have financial implications for the capital budget of the Province as provided for in the Capital Estimates, a cost estimate shall include the following information:

(a) the estimated total capital expenditures related to the election commitment; and

(b) the estimated capital expenditures related to the election commitment in the fiscal year in which the election commitment is made and in each of the four following fiscal years.

5( 6) With respect to an election commitment that will have financial implications for the capital budget of the Province as provided for in the Capital Estimates, a maximum cost statement shall include the following information:

(a) the maximum total capital expenditures related to the election commitment; and

(b) the maximum capital expenditures related to the election commitment in the fiscal year in which the election commitment is made and in each of the four following fiscal years.

5( 7) A computational, clerical or typographical error or any error of a similar nature in a disclosure statement does not constitute a violation of or a failure to comply with this section.

Timing of disclosure statement

6( 1) Subject to subsection (2), a registered political party shall file a disclosure statement related to an election commitment with the Supervisor and publish it as follows:

(a) subject to paragraph (c), with respect to an election commitment made on or after the ninetieth day before the ordinary polling day, but before the day on which the writs are issued, no later than the day on which the writs are issued;

(b) with respect to a party commitment made on or after the day on which the writs are issued, the day on which the commitment is made;

(c) with respect to a leader commitment made on or after the second day before the day on which the writs are issued, no later than the third day following the day on which the commitment is made;

(d) despite paragraph (c), with respect to a leader commitment made on or after the third day before the advance polling day, the day on which the commitment is made; and

(e) with respect to an election commitment made by a political party before it becomes a registered political party, no later than the seventh day following the day on which the political party becomes a registered political party.

6( 2) Before the first advance polling day, a registered political party shall file the disclosure statement related to all electoral commitments, including leader commitments, with the Supervisor and publish them.

Compliance of disclosure statements

7( 1) When the Supervisor receives a disclosure statement that is filed under this Act, the Supervisor shall review it to determine if it has been prepared in accordance with this Act and the regulations and whether it includes the information or documents prescribed by regulation.

7( 2) If the Supervisor determines that a disclosure statement complies with this Act and the regulations, the Supervisor shall, within two business days of receiving the disclosure statement,

(a) prepare a certificate of compliance in the form and manner approved by the Supervisor, and

(b) make the certificate of compliance and the disclosure statement available for public examination by publishing them on the Elections New Brunswick website.

7( 3) If the Supervisor determines that a disclosure statement is not in compliance with this Act and the regulations, the Supervisor shall, within two business days of receiving the disclosure statement, provide a notice to the official representative who filed the disclosure statement and the notice shall direct the party to correct any document that does not comply and to file a new disclosure statement within 24 hours.

7( 4) If a registered political party has failed to comply with the direction in a notice provided by the Supervisor under subsection (3), the registered political party shall be prohibited from advertising during the remainder of the election period and shall be subject to an administrative penalty established by regulation.

7( 5) The Province may sue for and recover an administrative penalty in an action in any court as if the amount were a debt.

7( 6) The Supervisor may waive an administrative penalty imposed under this section in the circumstances prescribed by regulation.

Complaint of non-compliance

8( 1) Through its official representative, a registered political party may make a complaint to the Supervisor against another registered political party alleging that it has failed to file a disclosure statement with the Supervisor.

8( 2) A complaint shall be in writing and signed on behalf of the party making the complaint and shall include the following information:

(a) the name of the registered political party making the complaint;

(b) the name of its official representative;

(d) as much detail as possible concerning the failure to comply that is the subject matter of the complaint.

Review of complaint

9( 1) On receiving a complaint under subsection 8(1), the Supervisor shall inform the official representative that a complaint has been made against the registered political party and provide him or her with a copy of the complaint.

9( 2) The Supervisor shall review the complaint and shall

(a) conduct an investigation when he or she believes on reasonable grounds that there is a basis for the complaint, or

(b) refuse to conduct an investigation when he or she considers that the complaint is frivolous, vexatious or made in bad faith or that an investigation is not necessary under the circumstances.

9( 3) In his or her investigation of a complaint, the Supervisor may

(a) order a person to produce to the Supervisor, or provide the Supervisor with access to, any relevant document or media in the person’s possession or control,

(b) issue a summons to witness to compel the attendance of witnesses,

(d) require evidence to be given under oath or affirmation.

9( 4) If a person fails to comply with a summons issued or an order made under subsection (3), the Supervisor may apply to a judge of The Court of Queen’s Bench of New Brunswick for one or both of the following orders:

(a) an order directing the person to comply with the summons or order; and

(b) an order finding the person in contempt of the Supervisor and imposing punishment in the same manner as if the person had been found in contempt of court.

9( 5) If the Supervisor refuses to conduct an investigation of the complaint, the Supervisor shall notify the party making the complaint and provide reasons in writing.

Decision of Supervisor

10 Within 72 hours after receiving a complaint made under section 8, the Supervisor may

(a) dismiss the complaint, or

(b) make a finding that the registered political party has failed to file a disclosure statement.

Notice of decision of Supervisor

11( 1) If the Supervisor has found that the registered political party has failed to file a disclosure statement, the Supervisor shall give notice to the registered political party through its official representative.

11( 2) The notice given by the Supervisor under subsection (1) shall inform the registered political party that

(a) pursuant to an investigation, the Supervisor has found that the party has failed to file a disclosure statement, and

(b) as a remedy, the party is required to file a disclosure statement within 24 hours.

Penalty for non-compliance

12 A registered political party that does not comply with a requirement in the notice given to it by the Supervisor is subject to the same prohibition and the same measures set out in subsection 7(4).

Immunity

13 No action or other proceeding lies or shall be instituted against the Supervisor or any person acting under his or her authority for any act done in good faith in the execution or intended execution of the person’s duty.

Application for declaration of non-compliance

14( 1) Within 30 days after the day on which the writs are returnable, the official representative of a registered political party may apply by Notice of Application to a judge of The Court of Queen’s Bench of New Brunswick for a declaration that another registered political party has violated or failed to comply with section 4, 5 or 6.

14( 2) An application under this section shall include the following information:

(a) the name of the registered political party to which the declaration relates;

(b) the name of its official representative; and

(c) the election commitment that is the subject of an allegation of a violation or failure to comply with section 4, 5 or 6.

14( 3) When a Notice of Application is issued under this section, the applicant shall deliver or send by registered mail to the Supervisor a copy of the Notice of Application.

14( 4) To the extent that they are not inconsistent with this Act and the regulations, the Rules of Court apply to an application commenced under this section.

Declaration of non-compliance

15( 1) On hearing an application under section 14, if a judge is satisfied that the registered political party has violated or failed to comply with section 4, 5 or 6, the judge shall issue a declaration to that effect.

15( 2) When the judge renders his or her decision on an application, the clerk of the court shall forward to the Supervisor certified copies of the decision and of any declaration issued under subsection (1).

Disqualification from annual allowance

16( 1) Despite the Political Process Financing Act, on receipt by the Supervisor of the certified copy of a declaration issued under section 15, the registered political party with respect to which the declaration is made shall not qualify to receive an annual allowance under section 31 of the Political Process Financing Act.

16( 2) A registered political party shall not qualify under subsection (1) to receive an annual allowance for the period commencing with the fiscal year following the fiscal year in which the violation or failure to comply occurred and ending with the fiscal year in which the next general election is held, inclusive of both fiscal years.

16( 3) If an application is commenced under section 14, no quarterly instalments of the annual allowance under the Political Process Financing Act for the period referred to in subsection (2) shall be payable to the registered political party against which a declaration is sought until after the judge has rendered his or her decision on the application.

16( 4) The failure of a registered political party to qualify for an annual allowance under subsection (1) does not affect the determination of the amount of the annual allowance prescribed in section 32 of the Political Process Financing Act, which shall be determined as if the party had remained qualified to receive it.

Division B

Legislative Library Research Support

Definitions

17 The following definitions apply in this Division.

“department” means a portion of the Public Service specified in Part 1 or Part 4 of the First Schedule of the Public Service Labour Relations Act, but does not include the Office of the Premier. (ministère)

“Director” means the Director of the Legislative Library appointed under the Legislative Library Act. (directeur)

“record” means a record as defined in the Right to Information and Protection of Privacy Act. (document)

Research support

18( 1) During the six-month period before the ordinary polling day for a scheduled general election, the Legislative Library shall provide research services to registered political parties in order to assist them in meeting their obligations under this Act.

18( 2) When providing information to registered political parties, the Director is not restricted to providing only information that is accessed in accordance with this Act and shall take reasonable steps to access relevant information from other available sources.

Access to information

19( 1) The Director is entitled to request and receive from a department any records in the custody or under the control of that department that the Director requires to assist a registered political party in meeting its obligations under this Act.

19( 2) The right to request and receive records under subsection (1) does not extend to the following:

(a) a record that contains information that is excepted from disclosure under Division B or C of Part 2 of the Right to Information and Protection of Privacy Act, but if that information can reasonably be severed from the record, the Director has a right to request and receive information from the remainder of the record;

(b) the records, information and other documents referred to in section 4 of the Right to Information and Protection of Privacy Act; and

19( 3) A request under subsection (1) may be made only to the Clerk of the Executive Council who shall forward it to the appropriate deputy head of a department or a person designated by a deputy head to receive those requests and shall be made in writing or by electronic means.

19( 4) For the purposes of this section, a reference to a Minister who is the head of a public body in the Right to Information and Protection of Privacy Act shall be deemed to be a reference to the deputy head of a department or a person designated by a deputy head.

19( 5) Not later than the one hundred and twentieth day before the ordinary polling day for a scheduled general election, the Clerk of the Executive Council shall provide to the Director the name of the deputy head of each department or of any person designated by a deputy head to receive requests under subsection (1).

Confidentiality of requests and sources

20( 1) When the Director makes a request under section 19, the Director shall not disclose the identity of the registered political party for which the Director is requesting the records or any other information respecting the registered political party.

20( 2) When the Director provides information that the Director has received in accordance with section 19 to a registered political party, with respect to the source of the information, the Director may disclose only that it was received from a department and may not identify the department or any other information with respect to the source.

20( 3) When a request is received under section 19, a person shall limit the disclosure of any information relating to that request, including that a request has been received, to those persons who require the information for the purpose of replying to the request, and in no case shall a person disclose such information to any other person employed under subsection 18(1) of the Civil Service Act.

20( 4) A person who violates or fails to comply with subsection (1), (2) or (3) commits an offence punishable under Part 2 of the Provincial Offences Procedure Act as a category F offence.

Time period for response

21( 1) When a request under section 19 is received by a departmental official more than 60 days before the ordinary polling day, he or she shall respond in writing to the request within seven days after receiving the request.

21( 2) When a request under section 19 is received by a departmental official no more than 60 days before the ordinary polling day, he or she shall respond in writing to the request within three business days after receiving the request.

Designation by Director

22( 1) The Director may designate one or more employees of the Legislative Library to act on the Director’s behalf for the purposes of this Division.

22( 2) A designation under subsection (1) shall be in writing and a copy shall be provided to the Clerk of the Executive Council.

PART 2

MISCELLANEOUS PROVISIONS

Filing documents and communicating electronically

23( 1) Any document required to be filed with the Supervisor under this Act or the regulations shall be transmitted in an electronic format that has been approved by the Supervisor, using the technology put in place by the Supervisor.

23( 2) All communication with the Supervisor and all notices given by the Supervisor under this Act shall be transmitted in an electronic format that has been approved by the Supervisor, using the technology put in place by the Supervisor.

23( 3) The electronic filing of a document with the Supervisor or electronic communication with the Supervisor satisfies any requirement of this Act or the regulations if the filing or communication is made in accordance with the Electronic Transactions Act.

Regulations

24 The Lieutenant-Governor in Council may make regulations

(a) prescribing the format of a disclosure statement and its manner of preparation;

(b) prescribing the content of a disclosure statement, including prescribing information or documents to be included with a disclosure statement;

(d) respecting the calculation of an administrative penalty payable in respect of a contravention;

(e) authorizing the Supervisor to impose administrative penalties;

(f) fixing the maximum amount of an administrative penalty that may be imposed;

(g) prescribing the procedures for imposing an administrative penalty;

(h) prescribing the form of the notice of administrative penalty,

(i) prescribing the procedures for paying an administrative penalty;

(j) prescribing circumstances for the purposes of subsection 7(6);

(k) defining words or expressions used in this Act but not defined in this Act, for the purposes of this Act, the regulations or both;

(l) respecting any other matter that may be necessary for the proper administration of this Act.

PART 3

CONSEQUENTIAL AMENDMENTS
AND COMMENCEMENT

Legislative Library Act

25( 1) Section 1 of the Legislative Library Act, chapter 185 of the Revised Statutes, 2011, is amended by adding the following definitions in alphabetical order:

“registered political party” means a registered political party as defined in the Elections Act. (parti politique enregistré)

“scheduled general election” means a scheduled general election as defined in the Elections Act. (élections génerales programmées)

25( 2) Section 2 of the Act is amended by adding after subsection (1) the following:

2( 1.1) During the six-month period before the ordinary polling day for a scheduled general election, the Legislative Library shall provide research services to registered political parties in order to assist them in meeting their obligations under Part 1 of the Transparency in Election Commitments Act.

Political Process Financing Act

26 Subsection 67(2) of the Political Process Financing Act, chapter P-9.3 of the Acts of New Brunswick, 1978, is amended by adding after paragraph (f) the following:

(f.01) the reasonable expenses incurred by a registered political party for the purpose of fulfilling its obligations under Part 1 of the Transparency in Election Commitments Act;

Commencement

27 This Act or any provision of it comes into force on a day or days to be fixed by proclamation.