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New Zealand Flag Referendums Bill (Consistent) (Sections 5, 7, 14) [2015] NZBORARp 4 (24 February 2015)

Last Updated: 17 January 2019

New Zealand Flag Referendums Bill

24 February 2015

Attorney-General


New Zealand Flag Referendums Bill – Consistency with NZ Bill of Rights Act 1990


Our Ref: ATT395/223


1. We have reviewed the New Zealand Flag Referendums Bill for consistency with the New

Zealand Bill of Rights Act 1990.

2. We have been provided with the attached copy of the Bill which we are advised is subject to proof-reading, but is otherwise the final version.

3. The Bill provides for two postal referendums related to the New Zealand flag. The first referendum will determine a preferred design alternative to the current flag. The second referendum will determine whether this alternative or the current flag shall be the New Zealand flag. The Bill provides for the administration of the referendums, specifies the voting process and regulates referendum-related advertising. The Bill further provides for necessary legislative change should the outcome result in a change of flag.

4. The restrictions placed on referendum advertising under Subpart 7 impose limits on freedom

of expression affirmed by s 14 of the Bill of Rights Act.

5. Clause 60 requires a person who publishes or causes to publish a referendum advertisement [1] to do so only if that advertisement states the name and address of the promoter. [2] Clause 65 provides it is an offence to fail to include this promoter statement.

6. These restrictions do not give rise to any inconsistency with the Bill of Rights Act as they constitute a justified limit under s 5 of the 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. [3]

7. The restrictions on referendum advertising serve an important objective, the promotion of transparency and public trust in the referendum process. [4] The restrictions are rationally connected and proportionate to their objective, being minimally intrusive.

8. For these reasons we conclude the Bill is consistent with the Bill of Rights Act.

9. In accordance with Crown Law practice, this advice has been peer reviewed by Helen Carrad, Crown Counsel.

Debra Harris

Crown Counsel

Footnotes

1. Clause 63 defines a “referendum advertisement” as an advertisement that (a) may reasonably be regarded as encouraging or persuading electors (i) to vote in a particular way in a referendum; or (ii) not to vote in a particular way in a referendum; and (b) is published, at any time from the date of the commencement of this Act until the close of the voting period for the second flag referendum by the methods listed in cls 63(1)(b)(i) to 63(1)(b)(iv). Clause 63(2) expressly defines what is not a referendum advertisement.

2. A “promoter” is defined as a person who initiates or instigates a referendum advertisement

(clause 62).

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

4. In Harper v Canada (Attorney-General), [2004] 1 SCR 827 the Supreme Court of Canada

upheld self-identification and registration requirements in relation to electoral advertising as they served the interests of transparency and enhance the confidence of Canadians in their electoral system, at [48] and [142]-[146].

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 New Zealand Flag Referendums 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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