Dr Rodney Harrison on the Electoral Finance Act

I’ve been given a copy of a paper which Dr Rodney Harrison delivered yesterday to the University of Waikato Law School. It is a weighty 6,500 words and its subject is the Electoral Finance Act with the title:

Political Free Speech in New Zealand: Dangerous Beast or Endangered Species

Now before I quote from the paper, let me give some background on Dr Harrison. I do this because supporters of the Electoral Finance Act often try to shoot or smear the messenger with ridicolous allegations such as a client of a law firm once made a donation to National etc etc.

Dr Harrison has a PhD in Law and has been a QC since 1994. He is regarded as one of the leading public law specialists in New Zealand. The cases he has been involved in are extensive. His clients have included the Springbok Tour clowns, the Auckland Council for Civil Liberties, the Auckland Unemployed Workers’ Rights Centre, Aziz Choudry, the NZ Amalgamated Engineering Union, the Refugee Council of NZ, and Ahmed Zaoui. Again I give this so not even The Standard can dismiss him as a righwing Tory lawyer as they usually do with lawyers who write things they disagree with.

His full paper can be downloaded here:political-freedom-of-expression-and-electoral-finance-act-2007. It is a 20 page word document.

Dr Harrison does an excellent job of canvassing the arguments for and against the Electoral Finance Act in terms of the Bill of Rights. I would butcher them if I tried to summarise them here, so I merely suggest people read the paper for themselves. However I will quote his conclusion:

The restrictions imposed by the EFA on political free speech coming within the Act’s definition of “election advertisement” are inconsistent with section 14 read with section 12 of the Bill of Rights, by a considerable margin. The financial limits on expenditure which the legislation imposes, considered in the context of the greatly increased duration (in practice) of the “regulated period”, significantly restrict rather than promote participation by the public in Parliamentary democracy. By the same token, much less restrictive measures, for example much higher expenditure limits and a focus on identification of and disclosure and reporting requirements for those who would use the mass media for their political advertising, would be a sufficient and proportionate means to the ends in question.

Furthermore, the extension of the definition of “election advertisement” beyond publications urging “vote/don’t vote for me/him/her/us/them”, to capture expressions of special interest advocacy in relation to actual or even potential campaign issues, must be seen as an unnecessary and disproportionate response in and of itself. When that is coupled with the vagueness of the EFA’s central definition and the issue of disincentivising compliance costs and reporting requirements, the unjustifiable nature of the restrictions imposed on by the EFA on both members of the public and political parties and candidates is placed beyond doubt.

In short, as indeed our ongoing experience this year has demonstrated, the EFA as drafted lacks a sense of proportion. Indeed, it seriously lacks a sense of humour – although plainly, someone out there has one. Those who voted it into law did so in the face of powerful appeals to reason from a wide range of bodies and individuals, including the Human Rights Commission, the New Zealand Law Society and the Electoral Commission itself. These appeals were met by a prediction, on the part of our (lay) Minister of Justice, that “the law of common sense will apply”. Unfortunately for democracy in this country, when applied to misconceived and badly drafted legislation, judicial or indeed any other form of “common sense” can only take us so far.

So far this year, the EFA has given rise to three applications for judicial review. The vagueness and unworkability of the EFA’s provisions means that we probably have not seen the last of the litigation. The ability to rely on corrupt and illegal practices created by the EFA in support of an election petition could well give rise to a further rash of litigation after polling day. The last election’s “Winston v Bob the Builder” election petition alleging candidate overspending could well be replicated under the EFA, many times over. The EFA, purportedly enacted to “maintain public and political confidence in the administration of elections”, is, judging by experience to date, well on track to have entirely the opposite effect.

Not much one needs to add to that.