EFB law suit fails against parliamentary privilege

June 21st, 2008 at 2:22 pm by David Farrar

NZPA reports that the lawsuit seeking declaration that the breached the Bill of Rights, and that the Attorney-General erred in not informing Parliament it did has failed due to parliamentary privilege:

The applicants alleged the did breach the Bill of Rights Act, and that Attorney-General should have informed Parliament of this.

said the Attorney-General had been performing a parliamentary function, and had not been acting as a member of the Government.

That meant the Attorney-General’s function was in the privileged category of internal parliamentary proceedings, and was non-justiciable.

This was not unexpected. A lawyer commented to me a while back that the chance of making it past parliamentary privilege was at best 3/10. They also said that if it did make it past the chance of sucess would then have been 9/10 as it was incomprehensible that anyone could find the original bill was not in conflict with the Bill of Rights.

It isn’t clear whether this decision affects only the lawsuit relating to whether the Electoral Finance Bill breached the Bill of Rights, or also affects the other lawsuit by and co seeking a declaration on whether the Electoral Finance Act is also in breach.

12 Responses to “EFB law suit fails against parliamentary privilege”

  1. Lee C (2,993 comments) says:

    Like Richard Pryor said: “Yeah? And If I had the police and the army behind me, I’d be a mother f***er too!”

    You lost, they won eat that.

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  2. GJM (99 comments) says:

    Shows how useless the Bill of Rights is in NZ, when it can be ignored by Parliment and overridden if it is inconvenient.

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  3. Murray (8,822 comments) says:

    Its a smidge more tricky than that GJM.

    The Bill of Rights ACT specifically does not allow its use to circumvent existing laws. By definition once legislation is passed it does not breech the BoA act because the BoA act does not allow this.

    This is why Labour were very dirty in rushing it through before it could be tested in court. Proposed legislation CAN breech the bill of rights act. Once its pass though we’re screwed.

    Our only option is to vote for someone who will repleal it.

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  4. Lee C (2,993 comments) says:

    And if anyone doubts this was the sleazy plan all along merely refer to Helen Clarks single line responses in Parliament re the BoRA ‘I[The Bill – EFB] does not contravene the Bill of Rights Act.” evidently to assert this one has to be reasonably secure in the knowledge that once passed it does not matter if the Bill failed to adhere to the BoRA in the first place – ie ‘We won, you lost, eat that.’
    The interesting thing is the advice that they received teat the EFB is not in contravention of the BoRA. By Val Sims. Any one have any nowledge of Sims’ meteoric rise to prominance before or since the EFB? How many of you have seen the advice? I was sent a copy By Mr Baigent.
    Even to my uninformed mind it is eye-wash.
    Then examine the Canadian Law upon which parts of the EFB is based – teh NZ part is seriously deficient by comparison.

    In short it has been a stitch up from day one.

    But now of course, the left are going on about ‘unintended consequences’.

    Fucking liars.

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  5. Lee C (2,993 comments) says:

    It’s politics 101 guys –

    “If you tell a lie big enough and keep repeating it, people will eventually come to believe it. ….. . It thus becomes vitally important for the State to use all of its powers to repress dissent, for the truth is the mortal enemy of the lie, and thus by extension, the truth is the greatest enemy of the State.” Goebbels

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  6. John Boscawen (133 comments) says:

    Lee C I am reminded of Hone Harawira’s speech on the third reading when he says : “Yes folks money talks, but nothing talks quite like the truth, and the truth about this bill is……” …but I digress……

    The judgement was handed down yesterday afternoon. I have just emailed David Farrar a copy and he is welcome to post it if he wishes. We are obviously very disappointted. We will consider the judgement in furthur detail over the next few days and take furthur and fresh expert legal advice before we decide to appeal or not. One of the positives is that we do at least have a judgment, and then five weeks after the case was heard. It could have taken a lot longer and that would have been even more frustrating.

    In answer to David’s question the strike out application succeeded on all respects. Part one was our argument that the orginal EFBill was inconsistent with BORA when it was introduced in July last year and it continued to be inconsistent with BORA until it was passed, and secondly Part two was that the EFAct was inconsistent after it was passed. The Crown succeded in all respects.

    A key case for us to overcome was Mangawaro vs. The Attorney General 1994. This was decided at the High Court and we were inviting the judge to overrule this case. We believed there had been sufficient changes to the law , judgements and reports since 1994 to enable him to do this. Unfortunately he did not feel he could do this. It may be that the Appeal court judges will be prepared to.

    I think two aspects are worth commenting on in particular.

    Firstly there can be no doubt that one of the government’s orginal intentions was that anyone who wanted to express an opinion on any political issue in election year would first be required to sign a statutory declartion before they spent a single dollar doing so. ( and Graeme Edgler and others can you quote many examples of not even having to spend a dollar before being caught) .

    That is right, whether you agreed with a government policy or you had to first sign a statutory declaration.

    The Crown Law office specifically considered this issue and concluded that it was reasonable and was not inconsistent with the provisions of the Bill of Rights. ( although we should be grateful that they did at least state this was at the outer limit of what would be acceptable). That opinion is dated 26 June 2007, one month before the bill had its first reading. Presumably the Attorney General acted on that advice when he did not notify parliament that the EFB was inconsistent with Bora.

    To me it is incomprehensible that the Crown Law office could consisder that it would be acceptable to make all New Zealanders first sign a statutory declaration before they spent a sinle dollar expressing a political view in election year. I would think that most New Zealanders, whether they supportted the left or the right wing of politics would consider this unacceptable.

    We took the action we did becausee in my view that approval could not go unchallenged. To allow it to go unchallenged will allow the Crown Law office to write similiar opinions in future. We were looking to the court to tell the Crown Law office and politicians of all persuassions that this was not acceptable.

    Secondly we sought to have the case dealt with urgency.

    The Crown Law office turned up to court on Monday 4 November argued against urgency. They argued the case did not need to be dealt with urgently becasue according to Parliament’s website the EFB was not due to be reported back to parliament until 25 January 2008, six months after it first reading. We objected strongly and argued that the media were reporting that it was likely to be reported back by mid November. The Crown objected on the basis that this was “heresay” . The judge had no alternative but to agree and dismissed our claim for urgency. In support of our request we then wrote to the Select Committee and asked them to advise them when they expected the bill would be reported back and by a vote of 7-6 they refused to tell us ( with Labour, NZF, Greens and United voting against).

    What has happended is wrong, and I intend to go to all reasonable efforts to righ it

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  7. Lee C (2,993 comments) says:

    Well John I would suggest a book release one month before the election tracing the evolution of this ‘piece of work’.

    by the way the Crown’s objection against urgency on the basis of ‘hearsay’ – were it proven that there is any evidence of a discussion by those with the majority to do so, that they intended to speed up the progress of the Bill with urgency would that in anyway represent a purjury or deliberate misrepresentation or criminal act? Or is it now the case that a Minister can deliberately lie to a Judge with impunity? And, in the absence of a lie, is it the case, that if asked for information a Minister can simply ‘vote’ to refuse to divulge information? Are not the proceedings of the Select Committee in the Public Domain?

    Surely there must be some evidence of such a discussion within the Green, Labour New Zealand First and United Future camps. I can’t believe that someone in Labour just woke up one morning with the bright idea to rush it into law, much to the suprize of the Greens, NZF, UF etc. If so who might this person have been? An elected representative or not?
    All in all this has to be the bigggest rort so far of this young century, these cynical bastards make Brash look like the amateur he obviously was…
    PS who was on the Select Committee? Should their names really bear discrete anonymity?
    I think you owe it to the public to start naming names.

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  8. burt (11,495 comments) says:

    John Boscawen

    It seems Sir Bob Jones is looking for some mischief with the EFA, you should have a coffee with him. Great effort, do you have a ‘donations’ site set up?

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  9. side show bob (3,476 comments) says:

    John B, You are missing the point, all this has been said before. This government doesn’t play by the rules, it will make them to suite. The only way this country will return to full and fair elections and full and fair laws is a huge mind shift or a fucking depression, my money is on the depression.

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  10. John Boscawen (133 comments) says:

    Burt, I am aware that Bob Jones is planning a campaign against it.

    As for a “donations” site, one of my big failings so far has been to have not yet set up a website for the Freedom of Speech Trust . It is on the agenda and I have had offers earlier this year to have it done for me. We do however prepare a regular newsletter and if you or anyone else would like to join the subscrition list please email me at john@boscawen.co.nz. Any one wishing to make donations to help fund the legal challenge can do so directly to the Trust’s bank account 12-3252-0039335-00 or by post to Box 42-267 Orakei, Auckland.

    Lee C the select committee was increased for the specific purpose of deliberating on the EFB, and had representatives from all the major parties. There were four from each of Labour and National and one from NZF ( Wollereton), Greens ( Turei) Act ( Hide) United ( Dunne) Maori ( Harawira).

    I do not recall all the other members but they included Findlayson for National, and Benson Pope for Labour.

    I was discusted when the Crown objected to urgency on the basis that parliament’s website showed it was not due to be reported back to 25 January.

    However by doing that it may however have ended up causing the government more ultimate damage. I was so disgusted that I returned to Auckland that evening and immediately put in place plans for a nationwide radio advertsing campaign that commenced later that week on Thursday 7 November. ( I had considered that in the weeks leading up to the case but had been persuaded by others not to proceed). My major motivating factor for that was also my concern that the major media were not treating the EFB with the seriousness that I thought it deserved. Had I realised the Herald were planning a major campaign commencing the following Monday 11 November it is doubtful if I would have proceeded with those radio ads or all the protest marches that followed.

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  11. Patrick Starr (3,674 comments) says:

    Sound like them John?

    Committee membership
    Lynne Pillay (Chairperson)
    Christopher Finlayson (Deputy Chairperson)
    Chris Auchinvole
    Charles Chauvel
    Hone Harawira (member for this item of business)
    Ann Hartley
    N´andor T´anczos
    Nicky Wagner
    David Benson-Pope (member for this item of business)
    Hon Peter Dunne (member for this item of business)
    Rodney Hide (member for this item of business)
    Anne Tolley (member for this item of business)
    R Doug Woolerton (member for this item of business)

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  12. Political Busker (231 comments) says:

    John you do have another entry.

    I have made a post to the judgement, which covers the more and the most direct means to challenge the Act, yet that ability is out of the hands of the public. It rests on confidence.

    I haven’t fully read the judgement yet. I will go through it in greater detail if there is a need or a request but for the moment it is a bit like licking scars and pretending your a dog over a healable wound. The legislation in respect of the justification you have raised is certainly a dog and the damage has already been done as you point out.

    Primarily, though unless you want to trawl exceptionally deep, dredging in and around 1688, (and without knowing if the school of information swims in your area), the cost and effort of an appeal appears; would be for surimi and not for crab.

    However, use some time to go through the Human Rights Act. The HR Commission have put in their own submission in regards to the legislation and its non conformity with the freedom of speech. This is a launching platform from where you would begin an efficiency. Whether or not you want to use this efficiency in the Court of Appeal is your decision but I figure there is an argument at the very least.

    The HRC have access to extraordinary powers. Read section 6.

    You are already familiar with the Declaratory Judgement Act and this is the base of your platform. I will admit I was suprised to see its use and the Justice dismiss it. I haven’t read through this point in the part I have read and on these grounds would (if) like to see the full transcript but no matter. The point here is that the declatatory judgement is hypothetical. It is a ‘what if’ situation. Maybe on these grounds the question asked wasn’t right. Maybe you should have asked something like ‘If we could establish an argument that outweighed the present view of the Court holding to Article 9 of the English Bill of Rights and thereby dismiss the precedent of Mangawaro, is there not grounds enough to establish that parliament has breached privilage… impeachment…”

    However, your own abilities under the DJA aside the HRC have only used s6 once as far as the Official Information documents I have have established (I am in the middle of an extraordinary case). They have other efficiencies as well but the difference between the case I submit and the case wish to appeal is that the Commission have already published on the point. This fact engages in my view and submission to you a responsibility of the Commission to act in a manner that is directly protective of the public interest. The responsibility I believe you can draw from the Commission is a question on how parliament can subvert human rights legislation that “previously” qualified the intent and practice of the legislature, implemented singularly under the protection of privilege and without the support of a robust debate by the present legislature. Remeber Rodney Hide from parliament out of order where he contests he has not had an effective ability to deabte the issue on the grounds of researched human rights issues is beside you.

    I’d venture to say you couldn’t lose. You should win.

    Second up though – the HRC will inform you immediately that they are already stretched out beyond their capacity to help. As they are an independent body, you could always research their financial assistance to employ more staff.

    Cheers and good luck.

    Benjamin Easton
    (of a) father’s coalition.

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