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Electoral Amendment Bill (Consistent) (Sections 12(2), 14, 25(c)) [2013] NZBORARp 32 (26 August 2013)

Last Updated: 7 April 2019

Electoral Amendment Bill

26 August 2013

Attorney-General

Legal Advice

Consistency with the New Zealand Bill of Rights Act 1990: Electoral Amendment Bill

1. We have examined this Bill for consistency with the New Zealand Bill of Rights Act 1990. We have concluded that while the Bill raises issues under ss 12(2), 14 and 25(c) of the Bill of Rights Act, it appears to be consistent with that Act in terms of s 7.
   
2. In short:
   

2.1 The Bill follows the Justice and Electoral Committee Inquiry into the 2011 General Election and adopts a number of recommendations of that inquiry. These are predominantly administrative and/or formal in character, but several proposed amendments do raise issues under the Bill of Rights Act.

2.2 New provisions dealing with the registration of political parties and party logos, including a $500.00 registration fee and restricting the printing of party logos on ballot papers to registered parties, do limit access to political parties as means of exercising both the right to parliamentary candidacy and to electoral expression under ss 12(2) and 14 of the Bill of Rights Act. New provisions repealing the current exception for display of party colours on polling day and providing for reporting of electoral donations also limit the s 14 right to freedom of expression. We conclude, however, that these are reasonable limitations arrived at after due consideration and justifiable as means of ensuring fair, transparent and orderly elections.

2.3 Further, amended offence provisions place an evidential onus on defendants in respect of offences of failure to report or disclose certain electoral information, limiting the right to presumption of innocence affirmed by s 25(c) of the Act. However, we conclude that these limitations are justifiable on the basis that they apply to individuals who choose to accept responsibilities under the Electoral Act 1993 and, further, relate to offences and defences peculiarly within the knowledge of a defendant. For that reason, these provisions are justifiable under s 5.

Analysis

Outline of the Bill and issues raised

3. The Bill follows the Justice and Electoral Committee Inquiry into the 2011 General Election and adopts a number of recommendations of that inquiry. These are predominantly administrative and/or formal in character, but the following do raise issues under the Bill of Rights Act:
   

3.1 The introduction of a $500.00 fee for the registration of a political party (cll 6-7) and revised provisions for registration of political parties and party logos (cll 8-15) do place preconditions on access to political parties both as means of parliamentary candidacy and as a means of political expression, thereby limiting those rights as affirmed by ss 12(2) and 14 of the Bill of Rights Act;

3.2 Removal of the current limited exception for the display of political party colours on polling day (cll 35-36), which also limits the right of political expression affirmed by s 14 of the Act;

3.3 More stringent offence provisions for failure to file returns or otherwise disclose information, which include strict liability provisions (cll 40, 42-43, 47 & 49 and new s 214J), which impose an evidential onus on the accused person and so limit the right to the presumption of innocence affirmed by s 25(c) of the Act; and

3.4 Greater specificity in reporting of donations (cll 44-46 & 48) and provision for reporting of loans for electoral purposes (cll 50), which place a practical limit on political expression by subjecting these forms of political support to public disclosure and so potentially “chilling” such support.

4. The first, second and fourth of these issues raise a common question of whether the various limits on political and electoral activity can be justified in terms of s 5 of the Bill of Rights Act 1990 on the basis of their intended objective, which is the conduct of fair, orderly and transparent elections. The third issue also raises the question of whether the onus to prove reasonable excuse is justifiable under s 5. These are dealt with in turn.
   

Issue under ss 12(2) and 14

5. The broad point raised by cll 6-15, cll 35-36, 44-46, 48 and 50 is whether these limitations on electoral activity and expression can be justified in terms of s 5.
   
6. With the exception of the United States courts,1 there is a broad consensus across cognate jurisdictions that reasonable constraints upon electoral advertising and electoral expenditure are justifiable in order to ensure balance and transparency in electoral campaigning, including in respect of sources of funding.2
   
7. Applying that standard, the proposed amendments appear reasonable:
   

7.1 The requirements in respect of political party and party logo registration place relatively straightforward administrative preconditions on certain electoral activity, which appear strongly unlikely to constrain electoral activity to any significant degree;

7.2 The removal of the exception for the display of party colours is consistent with the overall restriction upon electoral canvassing on polling day, and again appears consistent with the objective of fair and orderly elections; and

7.3 The extension of financial disclosure obligations to loans appears brings such funding into line with other sources of electoral finance.

8. It is also material, noting the approach in particular of the European Court of Human Rights in Animal Defenders, above, that these amendments follow recommendations of the Electoral Commission, a non-partisan body, and of the parliamentary inquiry into the 2011 general election. On that basis, we conclude that these limitations on the ss 12(2) and 14 rights are justifiable in terms of s 5.
   

Issue of reverse onus provisions

9. The further issue raised by the Bill is that a number of reporting offences are made more stringent by being deemed to be “corrupt practices” under the Electoral Act 1993, with due consequences under that Act, but cease to be absolute liability offences by providing a defence of reasonable excuse. In doing so, however, these offence provisions place an evidential onus on the accused person, contrary to the presumption of innocence affirmed by s 25(c) of the Bill of Rights Act.3
   
10. The short point, however, is that the limitation under the Bill is justifiable on two well- recognised grounds:
    

10.1 The reporting obligations are not placed on the public at large but instead only upon those individuals who choose to accept responsibilities under the Electoral Act. Further, compliance with those responsibilities is of considerable importance to the objectives of fairness and transparency noted above;4 and

10.2 More practically, knowledge of and ability to prove a reasonable excuse in relation to a matter of administration - for example, if necessary records became unavailable - is a matter peculiarly within the knowledge of a defendant.5

Ben Keith

Crown Counsel

Footnotes

1. See, by way of recent prominent example, Citizens United v Federal Election Commission, 558 US 310 (2010).
2. See 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 (United

Nations Human Rights Committee); Bowman v United Kingdom (1998) 26 EHRR 1, [43] and Animal Defenders International v United Kingdom (App No 48876/08 (GC)) [106]-112] (European Court of Human Rights); and Libman v Quebec (Attorney-General) [1997] 3 SCR 569, [47]-[50] & [52]; R v Bryan [2007] 1 SCR 527, [9]; and Harper v Canada (Attorney-

General), [2004] 1 SCR 827, [87].

3. See Summary Proceedings Act 1957, s 67(8).
4. See, for example, R v Wholesale Travel Group Inc [1991] 3 SCR 154; AG v Malta (ECtHR, App 1664/90).
5. See, for example, Sheldrake v Director of Public Prosecutions [2004] UKHL 43, [2005] 1 AC 264.
   

Disclaimer

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 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.