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Local Electoral Amendment Bill (No 2) (Consistent) (Sections 14, 25(c)) [2012] NZBORARp 55 (24 September 2012)

Last Updated: 28 April 2019

24 September 2012 ATTORNEY-GENERAL

LEGAL ADVICE

CONSISTENCY WITH THE NEW ZEALAND BILL OF RIGHTS ACT 1990: LOCAL ELECTORAL AMENDMENT BILL (NO 2)

1. We have considered whether the Local Electoral Amendment Bill (No 2) (PCO 16692/9.0) (“the Bill”) is consistent with the New Zealand Bill of Rights Act 1990 (the “Bill of Rights Act”). We understand that the Bill is likely to be considered by the Cabinet Legislation Committee at its meeting on Thursday, 27 September 2012.
2. The Bill amends the Local Electoral Act 2001 and the Local Electoral Regulations 2001 to:
   • limit the size of an anonymous donation a recipient can retain;
   • amend the definition of “anonymous” and “donation”;
   • increase disclosure, reporting and recording obligations; and
   • introduce penalties for non-compliance with new obligations;
3. The Bill contains strict liability offences. These engage s 25(c) (presumption of innocence) of the Bill of Rights Act because an accused person is required to prove a defence or disprove a presumption to escape liability, instead of merely raising a defence in an effort to create reasonable doubt. This means a person may be convicted despite reasonable doubt existing.
4. In determining whether or not strict liability offences can be justified we have considered:
   1. the nature and context of the conduct to be regulated (the offences relate to various reporting requirements, which are important to maintaining transparency and accountability in electoral activities);
   2. the ability of the defendant to exonerate themselves and the risk of conviction of an innocent person (there are defences based on the reasonableness of the person’s actions); and
   100. the penalty level (the maximum penalties for the Bill’s offences are fines of between

$1,000 to $5,000, which are within a reasonable range for regulatory offences).

5. In view of these factors, we consider that the strict liability offences, and the consequent limits on the right in s 25(c), are clearly justified under s 5 of the Bill of Rights Act.
6. The provisions in the Bill compelling the disclosure of information appear also to raise a prima facie issue under s 14 (freedom of expression) of the Bill of Rights Act. We consider these provisions are plainly justified.
7. In summary, we conclude that the Bill appears to be consistent with the rights and freedoms affirmed in the Bill of Rights Act.

Roger Howard

Acting Chief Legal Counsel Office of Legal Counsel

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 Local Electoral Amendment Bill (No 2). 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.