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Electoral Referendum Bill (Consistent) (Section 14) [2010] NZBORARp 11 (23 March 2010)

Last Updated: 7 May 2019

Electoral Referendum Bill

23 March 2010 Attorney-General

Electoral Referendum Bill (PCO14160/5.5) - Consistency with the New Zealand Bill of Rights Act 1990

Our Ref: ATT395/124

1. I have reviewed the Electoral Referendum Bill (PCO14160/5.5) for consistency with the New Zealand Bill of Rights Act 1990.
2. The Bill makes provision for an indicative referendum on the preferred system of voting in general elections (the mixed member proportional representation system or another system) to be held in conjunction with the next general election. The referendum will be conducted in accordance with the provisions of the Electoral Act 1993, with necessary modifications, subject to any express exclusion in the Bill. [1]
3. The restrictions placed on referendum advertising under Part 3 of the Bill impose limits on the right to freedom of expression affirmed by section 14 of the Bill of Rights Act.
4. Part 3 of the Bill imposes self identification and registration requirements on those who promote [2] referendum advertisements [3] during the regulated period [4] in that:
   
   • 4.1 A person is entitled to promote a referendum advertisement if they are registered under provisions of the Bill [5] or if they do not incur referendum expenses [6] over $12,000 [7] in relation to referendum advertisements published during the regulated period (clause 32);
     
   • 4.2 A referendum advertisement must state the promoter’s name and address

(clause 36);

4.3 It is an offence to wilfully contravene the registration or self identification requirements (clause 51).

5. These restrictions, do not however, give rise to any inconsistency with the Bill of Rights Act as they are justifiable under s 5 of that Act. Application of s 5 entails an assessment of whether a restriction is rationally connected to an important objective and is proportionate to that objective. [8]
6. The restrictions on referendum advertising serve an important objective, the promotion of transparency and public trust in the referendum process. [9] The restrictions are rationally connected and proportionate to their objective, being minimally intrusive.
7. For these reasons I conclude the Bill is consistent with the Bill of Rights Act.
8. In accordance with Crown Law practice, this advice has been peer reviewed by Victoria Casey, Crown Counsel.

Yours sincerely

Jane Foster

Associate Crown Counsel

Footnotes:

1. Clause 8
2. A “promoter” is defined as a person on whose initiative a referendum advertisement

is published or is to be published (clause 29).

3. Clause 30(1) defines a “referendum advertisement” is an advertisement that may reasonably be regarded as encouraging or persuading voters to either vote or not vote in a particular way in the referendum. Clause 30(2) expressly defines what is not a referendum advertisement, including advertisements by the Electoral Commission or other agencies conducting official publicity or information campaign on behalf of the Government and any news or comments, other than advertising material, that is for the purpose of informing, enlightening, or entertaining readers.
4. Being the 3 months before polling day for the next general election (see clause 29)
5. A “registered promoter” is a promoter registered under clause 39 (see definition in

clause 29). Clauses 37-49 govern registration of promoters.

6. Defined in clause 31.
7. Inclusive of goods and services tax.

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

9. In Harper v Canada(Attorney-General), [2004] 1 SCR 827 the Supreme Court of Canada upheld self-identification and registration requirements as they served the interests of transparency and enhance the confidence of Canadians in their electoral system, at [48] and [142]-[146].

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 Referendum 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. Whilst care has been taken to ensure that this document is an accurate reproduction of the advice provided to the Attorney-General, neither the Ministry of Justice nor the Crown Law Office accepts any liability for any errors or omissions.