The Rule of Law Committee on the Electoral Finance Act

What is the Rule of Law Committee? It is a committee of the NZ Law Society and it’s TOR include:

• To promote the continued separation of the legislative, executive and judicial functions of government and, in particular, to promote and protect judicial independence;
• To monitor and respond to rule of law issues arising from proposals, decisions or actions of the New Zealand Government or government agencies;
• To monitor the mechanisms of government, including constitutional conventions;
• To maintain a neutral apolitical position;

It is chaired by Austin Forbes QC, a former President of the NZ Law Society.

Another member is Cheryl Gwyn. She is the Deputy Solictor-General for Constitutional Affairs. Incidentially Cheryl has her own Trevor Loudon profile and nothing wrong with that, but it indicates she can’t be written off as a nasty right winger by those who believe in shooting the messenger).

Anyway this Rule of Law Committee has published a summary paper on the Electoral Finance Act. Some useful extracts:

The third party regime, related eligibility and regulated period provisions of the Act together
constitute a clear prima facie breach of the right to freedom of expression under section 14 of
BORA.

No disagreements there.

They then look at justification for any breach:

In the present context, a Court would need to consider whether the regime pursues a sufficiently important social objective to warrant overriding a protected right and, if so, whether the chosen means to that end bear a rational connection and are not disproportionate or excessive.

The onus for meeting those tests lies with the Government. It is a substantial one. The right to political free speech is fundamental to the operation of a representative democracy and intrusions upon that right must be supported by strong and compelling reasons.

However, the Government proffered no evidence to substantiate the need for the legislation at any point during the Act’s passage through its legislative stages. Broad assertions were made about the effect of electoral advertising, but none of the supporting materials that accompanied the Act’s passage (the Explanatory Note and select committee majority report) provided reliable empirical or statistical evidence to back up those assertions.

Nice phrases – the right to political free speech is fundamental to the operation of a representative democracy. And the Government proffered no evidence on the need for the legislation – just broad assertions.

Even assuming a case had been made for legislative intervention, the regime does not appear to
satisfy the proportionality test for establishing a justifiable limit on the right of freedom of
expression. The regulated period seems excessive and disproportionate to the objectives it is
purported to address.

In other words even if (and that is a big if) some sort of law change was needed along these lines, this change was over the top.

Given the issues at stake, it would clearly serve the public interest to have the Act tested in court. Relief might take the form of a declaration of inconsistency, which would not affect the validity or operation of the Act. But a declaration would have immense ‘moral’ force in bringing to the public’s attention the unwarranted intrusion on the right to freedom of political expression. The media and public attention associated with any challenge would be significant.

Now this is a big story. The Right of Law Committee of the Law Society thinks the EFA is so bad, there should be a judicial declaration that it is inconsistent with the Bill of Rights Act, to draw to the public’s attention how repressive the law is.

The rule of law requires, as a minimum, certain, stable and predictable rules of laws that commend themselves to the sense of fairness of the people. However, the uncertainties that beleaguer the Act are seriously confounding the political process. No one is able to say with confidence whether some forms of political spending constitute election advertising and are subject to the Act’s prescriptive requirements. Given the uncertainties, the rule of law has descended into what an electoral official says is the law (does this or does this not constitute election advertising?). So much, then, for certain, stable and predicable rules of law. The Act is fundamentally flawed and misconceived, and ought to be repealed.

And they call for its total repeal, not just amendment.

A stated objective of the legislation was to encourage participation in the electoral system, but indications are that it is having the reverse effect.

I think the term in vogue is “a chilling effect”

It would be interesting to hear from the Minister of Justice on how this common sense law is deemed by the Rule of Law Committee of the Law Society to be so bad it breaches the Bill of Rights and should be repealed.