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Electoral (Finance Reform and Advance Voting) Amendment Bill (Consistent) (Sections 14, 25(c)) [2010] NZBORARp 20 (19 April 2010)
Last Updated: 16 June 2019
Electoral (Finance Reform and Advance Voting) Amendment Bill
19 April 2010 ATTORNEY-GENERAL
Electoral (Finance Reform and Advance Voting) Amendment Bill (PCO 14213/9.0):
Consistency with the New Zealand Bill of Rights Act
1990
Our Ref: ATT395/102
- I
have reviewed this Bill for consistency with the New Zealand Bill of Rights Act
1900.
- The
Bill amends the Electoral Act 1993 to reform certain aspects of the regulation
of electoral advertising and electoral expenditure
and also, in cl 6, amends the
scheme for special votes. The regulation of advertising and expenditure under
the Bill gives rise to
questions in respect of the freedom of expression
affirmed by s 14 of the Bill of Rights Act. There is also a narrower issue of
the
presumption of innocence affirmed by s 25(c) in respect of two offence
provisions.
- I
conclude, however, that these limitations are justifiable in terms of s 5 of the
Bill of Rights Act and that the Bill therefore
gives rise to no apparent
inconsistency with that Act.
Restrictions on free expression under the Bill
- The
provisions of the Bill relevant to the right of free expression are as
follows:
- 4.1 New s 3A
(cl 5) expands the scope of the definition of advertisement to include all
media, rather than only print and broadcast
media;
- 4.2 New s 3B
(cl 5) alters the definition of the “regulated period”, within which
advertising and expenditure restrictions
apply, so that it applies for the
shorter of either three months from polling day or from the date of the
announcement of the election
to polling day and so cannot, as at present, apply
retroactively; [1]
- 4.3 Clause 7
provides for the publication of election-related advertisements by persons and
bodies other than parties and candidates,
provided that:
- 4.3.1 Any
advertisement that encourages or persuades voters to vote for a party or
candidate must be authorised by a party or candidate,
and is then accounted for
under the party or candidate spending limit (new s 204H-204I);
- 4.3.2 Any such
person or body that, whether individually or in combination with others, engages
in expenditure of more than
$12,000 must
register with the Electoral Commission (new ss 204B- 204C and 204L-204Y);
and
4.3.3 Such advertisements must give the name and address of the person or body
(new s 204G);
4.4 New s 204J (cl 7) provides for the Electoral Commission to advise
candidates, parties and other persons or bodies as to whether
an advertisement
falls within the regulatory scheme;
4.5 Clause 8 introduces more detailed provision for the apportionment of joint
advertising expenditure between candidates and parties;
4.6 Clauses 9, 11 and 17-18 specify that instances of apparent offending need
not be referred to Police where the offending is so
inconsequential that
referral would not serve the public interest;
4.7 Clauses 13-16 and 19 introduce a revised scheme for the regulation and
reporting of donations, including donations made by associated
corporate
entities, and also effectively reenacts the current prohibition on overseas
donations of more than $1,000; and
4.8 Clause 25 provides for the inflation adjustment of the limits for candidate
and party expenditure by way of Order in Council.
Regulation of expression in respect of elections
- The
Bill thus restricts free expression in relation to election campaigns in both
direct and indirect ways:
- 5.1 Advertising
by and on behalf of candidates and parties is subject to spending limits and
certain regulatory requirements;
- 5.2 Advertising
by persons and bodies other than candidates and parties may not, without
authorisation, advocate directly for a given
candidate or party and is also
subject to certain regulatory requirements; and
- 5.3 Donations
made in support of election campaigns are subject to restriction, reporting and
other regulatory requirements. As campaign
donations are the principal means by
which person and bodies other than candidates and parties may advocate for a
candidate or party,
these requirements do constrain this avenue for
expression.
- It
is necessary to consider whether these various limitations are justifiable in
terms of s 5 of the Bill of Rights Act: that is,
whether the restriction is
rationally connected to an important objective and is proportionate to that
objective. [2]
- The
stated intent of the Bill is to “ensure greater certainty and transparency
in the conduct of the electoral process and therefore
support public confidence
in the outcome of parliamentary elections”. The explanatory note to the
Bill also records that it
reflects areas of broad consensus reached through
consultation among all current parliamentary parties and with the public. [3]
- The
limitations provided by the Bill can be seen to be seen to serve two broad
principles: [4]
- 8.1 Electoral
advertising should, for reasons of equity, be subject to expenditure limits;
and
- 8.2 Electoral
activity, including advertising by persons and bodies other than candidates and
parties and the making of political
donations, should take place in a robustly
transparent way.
- These
principles have been widely accepted as consistent with human rights standards,
including by the United Nations Human Rights
Committee, [5] the European Court of Human Rights [6] and the Supreme Court of Canada. [7] The United States Supreme Court has,
however, rejected the first principle, in keeping with the much less readily
qualified character
of the right of free expression in that jurisdiction, [8] although it has supported the second. [9]
Analysis
- The
application of overall limits on expenditure by and on behalf of parties and
candidates serve the objective of promoting equity
between candidates and
parties. The limits follow those in place for several previous elections and, in
that respect, appear sufficiently
high to allow parties and candidates
meaningful scope for electoral promotion.
- Similarly,
the broad restriction of advertising by persons and bodies other than parties
and candidates directly in support of parties
and candidates, unless authorised,
is, although a significant restriction, a necessary corollary of the candidate
and party expenditure
limits. It would not be possible to regulate campaign
expenditure by parties and candidates if that regulation could be circumvented
by advertising by others.
- The
risk of uncertainty, and of attendant “chilling” of expression, in
respect of both restrictions is also mitigated
to some degree by the proposed
provision of advice by the Electoral Commission and by the reformed definition
of the regulated period.
- On
that basis, I conclude that these restrictions are justifiable in terms of s
5.
- Lastly,
the imposition of regulatory requirements on all advertising and the reporting
of donations, while both potentially a disincentive
for such activity, can be
seen as reasonable measures to promote transparency and public trust. [10] The effective reenactment of the $1,000
limit on overseas donations other than by persons who are citizens or registered
voters
can, similarly, be seen to support public confidence in the electoral
system. [11]
- It
follows that no apparent inconsistency arises.
Reverse onus offence provisions
- The
Bill contains two offence provisions that place a reverse onus on the accused
person [12] and thereby limit the right
to the presumption of innocence affirmed by s 25(c) of the Bill of Rights
Act:
- 16.1 New s
204F(3) (cl 7) provides an offence of failing, without reasonable excuse, to
take all reasonable steps to retain records
of electoral expenditure; and
- 16.2 New subs
210D(1) (cl 21) provides an offence of failing, without reasonable excuse, to
lodge certain donation returns.
- While
the point is not beyond argument, there have been strong indications that
placing such an onus onto the defendant is justifiable
where the defendant is
voluntarily involved in a regulated activity. [13] Here, candidates, parties and those
involved in the donation process are voluntary participants in the electoral
process,
which is a regulated activity. Upon entering into an
election, those affected are aware of the regulatory framework and are expected
to act with due diligence.
- For
that reason, I conclude that no issue of inconsistency arises in relation to
these provisions.
- In
accordance with Crown Law practice, this advice has been peer reviewed by Jane
Foster, Associate Crown Counsel.
Yours sincerely
Ben Keith Crown Counsel
Footnotes:
- Electoral
Act 1993, s 205(d).
- The
application of s 5 entails an assessment of whether the restriction is
rationally connected to an important objective and is proportionate
to that
objective: see, most recently, R v Hansen [2007] 3 NZLR 1 (SC) at [70],
[123], [203]-[204] and [271].
- Explanatory
note, 1.
- See,
comparably, Report of the Royal Commission on the Electoral System: Towards a
Better Democracy [1986] AJHR H3, 184 & 190-191.
- General
Comment on the right to participate in public affairs, voting rights and the
right of equal access to public service CCPR/C/21/Rev.1/Add.7, paras. 19
& 25. The Committee’s interpretations of the Covenant are considered
highly authoritative,
although not binding, in relation both to the Covenant and
the Bill of Rights Act: see, for example, Hemmes v Young [2004] NZCA 289; [2005] 2 NZLR
755 (CA), 776 and Quilter v Attorney- General [1997] NZCA 207; [1998] 1 NZLR 523 (CA),
530, 550 and 576-577.
- Bowman
v United Kingdom (1998) 26 EHRR 1, [43]; TV Vest As & Rogaland
Pensjonistparti v Norway [2008] ECHR 1687; (2009) 48 EHRR 51, [78].
- See,
notably, Libman v Quebec (Attorney-General) [1997] 3 SCR 569, [47]-[50]
& [52] and Harper v Canada (Attorney-General), [2004] 1 SCR 827,
[87].
- See,
for example, Buckley v Valeo [1976] USSC 24; 424 US 1 (1974), 20-21, and, most recently,
Citizens United v. Federal Election Commission, 558 U.S. (2010).
It must be noted that the right to freedom of expression under the United States
Constitution is expressed in unqualified
terms, unlike the position under art 19
of the International Covenant on Civil and Political Rights, ss 1 and 2 of the
Canadian Charter,
art 10 of the European Convention and ss 14 and 5 of the Bill
of Rights Act. For that reason, and also noting that, particularly,
Citizens
United is a strongly polarised decision of 5 members of the 9-member court,
the United States position is not followed here.
- See
Buckley, above n 8, 25-26 (avoidance of corrupt influence a permissible
objective).
- See,
similarly, Harper, above n 7, at [48] and [144].
- Clause
16 and s 207K of the Electoral Act 1993. Such restrictions are readily upheld:
see, for example, Harper v Canada (Attorney-General) (2002) 22 DLR (4th)
275, [193] & [289] (British Columbia Court of Appeal; reversed, but not on
this point, by Harper,
above n 7) and Citizens United,
above n 8, 46-47. The exclusion of non-residents does not engage any ground
of discrimination under s 19(1) of the Bill of Rights
Act and s 21 of the Human
Rights Act 1993.
- See
s 67(8) of the Summary Proceedings Act 1956.
- See,
for example, R v Wholesale Travel Group [1991] 3 SCR 154 (Supreme Court
of Canada) and AG v Malta (ECtHR, App 1664/90). The point was noted with
possible approval but not decided in Hansen at [43], [66]and [227].
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 (Finance Reform and Advance Voting) 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. 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.
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