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Electoral (Administration) Amendment Bill (Consistent) (Sections 12(b), 14) [2009] NZBORARp 64 (13 October 2009)

New Zealand Bill of Rights Act Reports

Electoral (Administration) Amendment Bill (Consistent) (Sections 12(b), 14) [2009] NZBORARp 64 (13 October 2009)

Last Updated: 28 April 2020

Electoral (Administration) Amendment Bill

13 October 2009

ATTORNEY-GENERAL

CONSISTENCY WITH THE NEW ZEALAND BILL OF RIGHTS ACT 1990: Electoral (Administration) Amendment Bill (PCO 13603/7.0)

Our Ref: ATT395/120

1. I have reviewed this Bill for consistency with the New Zealand Bill of Rights Act 1990.

While the Bill gives rise to questions under ss 12 and 14 of the Bill of Rights Act, I

conclude that the Bill appears to be consistent with that Act.

2. The Bill amends the Electoral Act 1993 to reestablish the Electoral Commission as a body encompassing the current functions of the Chief Electoral Officer and the current Electoral Commission from 1 October 2010. The explanatory note indicates that a second Bill will be introduced to transfer the responsibilities of the Chief Registrar of Electors to the reestablished Electoral Commission on 1 October 2012. The Bill seeks to provide for more integrated, efficient and consistent oversight and execution of operational electoral matters.

3. The questions under the Bill of Rights Act arise in respect of cll 5, 11 and 13 of the

Bill, which restrict candidacy for and election to the House of Representatives:

3.1 Clause 5 of the Bill amends the definition of “public servant” in the Electoral Act

1993 to include an “electoral official”, which means any person employed or engaged by the new Electoral Commission for the purpose of assisting with the performance of its functions (cl 5). Under s 52(2) of the Electoral Act, any “public servant”, as defined, who desires to become a candidate for election will be placed on a leave of absence during their candidacy. Under s 53 of the Act, any public servant elected as a member of the House is deemed to have vacated his or her office. Under s 55(1)(e), any member who becomes a public servant thereby vacates his or her seat.

3.2 New s 47A of the Bill (cl 11) disqualifies from candidature for the House of Representatives the Electoral Commissioner, any Deputy Electoral Commissioners and all Returning Officers. The corresponding provision in cl 13 creates a vacancy in the House of Representatives for any Member of Parliament who is appointed to one of these positions.

4. Both provisions appear to limit the right to be qualified for membership of the House affirmed by s 12(b) of the Bill of Rights Act and the right to freedom of expression affirmed by s 14. However, I consider that both provisions are justifiable in terms of

s 5 of that Act in order to avoid actual and perceived conflict of interest in the administration of the electoral process and, more broadly, to ensure public confidence.

Analysis

5. Sections 12(b) and 14 of the Bill of Right Act respectively provide:

“Every New Zealand citizen who is of or over the age of 18 years

(b) Is qualified for membership of the House of Representatives.” “Everyone has the right to freedom of expression, including the freedom to

seek, receive, and impart information and opinions of any kind in any form.”

Whether provisions limit s 12(b) right

6. The United Nations Human Rights Committee has considered restrictions of this kind as limitation on the parallel right under the International Covenant on Civil and Political Rights.[1] However, the Ontario Court of Appeal has suggested that a requirement to resign from employment is not a “coercive burden” that limits the parallel right under the Canadian Charter of Rights and Freedoms.[2]

7. In light of the financial burden of not receiving remuneration while a candidate and

mandatory vacation of office, I consider that the approach of the Human Rights Committee is preferable and that these provisions are a limitation on the s 12(b) right.

Whether provisions limit s 14 right

8. As with s 12(b), there is also disagreement between comparable jurisdictions as to whether provisions of this kind limit expression in terms of s 14:

8.1 In Baier v Alberta [2007] 2 SCR 673, the Supreme Court of Canada held that a prohibition on school teachers standing for election as school trustees did not amount to a restriction on expression under the Canadian Charter as that right does not extend to a right to candidacy; but

8.2 In Ahmed and Others v The United Kingdom (1998) 29 EHRR 1, the European Court of Human Rights held that a series of limitations on political activity by certain public officials, including restrictions on candidacy and political office, fell within the right of expression under the European Convention.

9. Noting the description of the s 14 right as being “as wide as human thought and imagination” [3] and the central character of political expression, it again appears preferable to regard candidacy as falling within the right.

Whether restrictions justifiable

10. It is therefore necessary to consider whether the restrictions on the rights affirmed by ss 12(b) and 14 are justifiable under section 5 of the Bill of Rights Act. In applying section 5, it is necessary to consider whether the restrictions serve an important

objective and, further, whether those restrictions are both rationally connected and proportionate to that objective.[4]

11. The limitations under the Bill can be seen to serve two related objectives:

11.1 First, those subject to the limitations are directly engaged in the

administration of elections and, in that respect, the limitations can be seen as means of avoiding actual or apparent conflicts of interest in the operation of the electoral process; and

11.2 Further, the limitations reflect broader concerns to ensure the neutrality of the public service and maintain trust and confidence.

12. Both the Supreme Court of Canada and the European Court of Human Rights have upheld restrictions on political activity by public officials on this second and broader ground.[5]

13. Here, the rationality and proportionality of the limitations is particularly clear given their application only to those involved in elections and, further, that the outright prohibition in the new s 47A applies only to a very limited category of officials.

14. For that reason, I conclude that the restrictions are justified.

15. In accordance with Crown Law practice, this advice has been peer reviewed by Victoria Casey, Crown Counsel. Greg Robins, Assistant Crown Counsel, has also assisted in the preparation of this advice.

Yours sincerely

Ben Keith

Crown Counsel

Footnotes:

1. Debreczeny v The Netherlands CCPR/C/53/D/500/1992 (1995).

2. Nunziata v Toronto (City) (2000) 189 DLR (4th) 627 at [13]; and see, similarly, Ontario

(Attorney General) v OPSEU [1987] 2 SCR 2.

3. Moonen v Film and Literature Board of Review [1999] NZCA 329; [2000] 2 NZLR 9 (CA), [15].

4. R v Hansen [2007] 3 NZLR 1 (SC) at [70], [123], [203]-[204] and [271].

5. See, respectively, Osborne v Canada (Treasury Board) [1991] 2 SCR 69 and Ahmed, above.

In addition to the general disclaimer for all documents on this website, please note the following: This advice was prepared to assist the Attorney-General to determine whether a report should be made to Parliament under s 7 of the New Zealand Bill of Rights Act 1990 in relation to the Electoral (Administration) Amendment Bill. It should not be used or acted upon for any other purpose. The advice does no more than assess whether the Bill complies with the minimum guarantees contained in the New Zealand Bill of Rights Act. The release

of this advice should not be taken to indicate that the Attorney-General agrees with all aspects of it, nor does its release constitute a general waiver of legal professional privilege in respect of this or any other matter.