The Electoral Finance Act and the Bill of Rights

The NZ Herald reports on the arguments in court yesterday on the Electoral Finance Act:

Aucklander John Boscawen – a fierce opponent of the Electoral Finance legislation – along with ACT MP Rodney Hide, Sensible Sentencing Trust spokesman Garth McVicar and Grey Power president Graham Stairmand, want to take a case to court, seeking a declaration that Attorney General Michael Cullen should have told Parliament that the law breached the Bill of Rights.

In the High Court at Wellington yesterday, Dr Cullen sought to have the case struck out. Crown lawyer John Pike argued that parliamentary privilege prevented the court from inquiring into the content of the legislation and the debate around it, and also that there was no settled legal view that the court could declare that the Electoral Finance Act was inconsistent with the Bill of Rights.

It is important to note the arguments yesterday were on the Crown’s application to strike the lawsuit out on the grounds of parliamentary privilege. It is only if they get past this strike out attempt, will the principal issues of whether the EFB and EFA breach the Bill of Rights get determined.

The legal arguments took all day and traversed time and space – judgments from three centuries, spanning four continents, were cited by lawyers from both sides. Justice Denis Clifford reserved his decision, a judgment which will instigate an intense constitutional debate on the roles of Parliament and the courts if he permits the case to proceed.

Nikki Pender, for Boscawen and the other complainants, said the Electoral Finance Act contained myriad provisions which breached the Bill of Rights, and that the Attorney General should have warned Parliament of that – as section seven of the Bill of Rights obliged him to do.

In a sense there are two issues here – whether the Electoral Finance Bill as originally drafted breached the Bill of Rights and whether the final Electoral Finance Act is inconsistent with it.

The NZ Law Society and Human Rights Commission (and almost every lawyer in NZ who has offered an opinion on this) is adamant the original EFB was in breach, and I would put the chance of victory there as well over 95% if the strike out application is unsuccessful. I mean the original EFB would have required every NZer to swear a statutory declaration before even offering an opinion on a political issue. It was, to quote Nicky Hager, something you would expect from the Nazi Party.

The final version of the EFA, while still seriously flawed in my opinion, certainly was a significant improvement over the original EFB and the arguments over how it stacks up with the Bill of Rights are more finely balanced.

Since the 1st of January there have been around 470 articles (and from what I can tell not a single one is favourable to the EFA or the Government) in the NZPA database mentioning the Electoral Finance Act. The Government hoped it would disappear as an issue within a few weeks, and instead it has been a relentless string of negative stories.

I am looking forward to the first reading of the Electoral Finance Repeal Act – hopefully it can be introduced before Christmas.