Dr Rodney Harrison on the Electoral Finance Act

July 11th, 2008 at 8:52 am by David Farrar

I’ve been given a copy of a paper which Dr delivered yesterday to the University of Waikato Law School. It is a weighty 6,500 words and its subject is the 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.

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24 Responses to “Dr Rodney Harrison on the Electoral Finance Act”

  1. boomtownprat (281 comments) says:

    National need to release their formal policy on the EFA now and challenge the hardworking chief strategist to a public debate on it.

    [DPF: Their policy is very clear. They will repeal the EFA in Government and consult the public and other parties about a proper revision of the old Electoral Act]

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  2. expat (4,048 comments) says:

    >>> appeals (against the legislation) were met by a prediction, on the part of our (lay) Minister of Justice, that “the law of common sense will apply”.

    Yes, the minister of justice is an amateur all right.

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  3. Lee C (4,516 comments) says:

    They should have got Tane to do the lecture. He has a much greater understanding of the EFA.

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  4. Fisiani (944 comments) says:

    What a devastating critique by a respected legal authority.
    Let’s be clear.
    The aim of the EFA is purely and simply to nobble any effective opposition to a 4th term Labour government. It is the pursuit of Absolute Power.
    The EFA is designed to prevent a repeat of the greatest billboard campaign in political history in NZ.
    It is designed to stop chinless scarf wearers having the timerity to oppose Labour.
    It is designed to limit National support campaigns but permit union campaigns for Labour.
    It is designed to trample over the Bill of Rights.
    It is the tipping point of tyranny
    Thank goodness John Key has unequivocably stated National POLICY
    National can only repeal this abomination if in power.
    It is moral duty of every defender of the Bill of Rights to facilitate National implementing repeal POLICY.

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  5. boomtownprat (281 comments) says:

    I know National have stated they will repeal, but I want to see it under policy on their website, with flashing lights. They need to make this a defining policy, a point of difference to counter the Labour lite jibes

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  6. Grant Michael McKenna (1,156 comments) says:

    Aha DPF- you fail to mention that Rodney Harrison has the same name as the dirtiest player in American football, and is therefore a US stooge, with a secret agenda to sell Stewart Island for basing nuclear weapons.

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  7. Fisiani (944 comments) says:

    Nearly 2 hours of this thread online and yet not one defence of the indefencible.
    The usual suspects must be frantically asking the 9th Floor to come up with some spin or obfuscation or smear to counter reasoned balanced critique.
    Apparently the advice for this one is “when in a hole stop digging” and “do not give this any oxygen”
    My assessment of Labour and the EFA. “When an ostrich sticks its head in the sand you can see more of its bum than its brain.”

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  8. getstaffed (9,189 comments) says:

    Fisiani, yes noted.

    Nome/Sonic/Tane/RMM/SteveWithers/GWW/Toad/jafapete: are we to assume that after months of defending the EFA, that this silence finally confirms that you’ve come to your senses and agree that this law is a complete turd?

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  9. getstaffed (9,189 comments) says:

    Your comment is awaiting moderation… HUH??

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  10. Murray (8,838 comments) says:

    Wodga?

    Phool?

    Chronic?

    Hellooooooo…

    Very quiet here isn’t it.

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  11. roger nome (4,067 comments) says:

    I was going to read this post, then I read the title of its source: “Political Free Speech in New Zealand: Dangerous Beast or Endangered Species” and realised it was going to be another “helen clark is mugabe” one. Oh well.

    [DPF: Translation I can't debate a single fact raised by Dr Harrison so I'll just do my usual trick of ignoring the reality. Maybe PJM should look at the various clients Dr Harrison has acted for before dismissing the paper]

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  12. phobius (46 comments) says:

    Could somebody please provide the quote where Dr Harrison says “helen clark is mugabe”?

    [DPF: He can't. The 20 page article actually quotes court opinions from around the world on the pros and cons of regulating political speech, and examines the reasonableness of the EFA against these. This type of analysis is foreign to PJM who decides things based purely on whether Labour and Greens voted for it]

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  13. Inventory2 (10,092 comments) says:

    phobius – roger nome will merely try to argue, complete with Wikipedia sources and Kiwiblogblog links (even though KBB is demised!) to support his argument that Dr Harrison was only ever a token leftie, and that in truth, said Dr Harrison is a distant relative of Genghis Khan. And of course in so doing, he will completely ignore the blindingly obvious truth, as recited by so eloquently by Lee C – that the EFA is a turd, and you can’t polish a turd!!

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  14. gd (2,286 comments) says:

    the Court of informed public opinion is against the EFA to the extent that the last remnants of its supporters are now left swoting at thin air arguements for it.

    face it guys and gals Give up The more you try and defend your position the more you dig yourselves into the hole labelled the Bill of Rights.

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  15. toad (3,669 comments) says:

    getstaffed said: Nome/Sonic/Tane/RMM/SteveWithers/GWW/Toad/jafapete: are we to assume that after months of defending the EFA, that this silence finally confirms that you’ve come to your senses and agree that this law is a complete turd?

    I have never defended the EFA – I have always maintained that it has serious flaws, including several of those Rodney Harrison QC (who, by the way, has legally represented me or organisations I have been involved with on several occasions) has identified.

    And Dr Rodney Harrison QC agrees with the purpose clause of the EFA, stating, with respect to it:

    These are all laudable aims, in theory capable of justifying reasonable limitations on political free speech in the context of a periodic election campaign.

    The difficulty, as Dr Harrison states, is when we get into the detail.

    It came down to a choice between the lesser of two evils – support the passage of the EFA into law or allow the previous law that was blatantly exploited by the Exclusive Brethren and the National Party at the 2005 election to remain in place.

    The situation where unlimited anonymous proxy advertising on behalf of political parties was lawful could not be permitted to continue, as it was a total affront to democracy. So despite the flaws in the EFA that Dr Harrison correctly identifies, I still think it is better than allowing the law that governed the 2005 election to govern this year’s one.

    So I would support the EFA being substantially amended or even repealed, but not if nothing replaced it and we went back to the previous law.

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  16. alex Masterley (1,490 comments) says:

    Isn’t RN’s comment a case of judging a book by it’s cover. I’ver always felt that to be intellectually honest one must read and understand the views of those with whom you disagree.
    Also Dr Harrison is the last person I would describe as a right wing Tory lawyer. If anything I would have described him as old school labour.

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  17. Chris Diack (723 comments) says:

    This is a cross post from a comment in reply to Dean Knight under “The Electoral Finance Act threesome”. It has some relevance to the Rodney Harrison paper.

    Dean:

    Thanks for the contribution.

    1. s7 BORA process – why the EFB evidenced a total system failure.

    The problem is the traffic light analogy isn’t the correct one here – whilst it might match the formal legislative scheme, it doesn’t match what’s really going on: i.e. the informal scheme.

    The S7 process is really about political embarrassment or cost. It basically says that if the Executive really really wants something that is contrary to the BORA then they better be prepared to pay the political price for it. This is consistent with Palmer’s approach to constitutionalism. New Zealanders may not have a deep understanding of the BORA or the full scope of their rights, but on balance they know they are in favour of “human rights.” There would be a right “to-do” if the politicians legislated contrary to the BORA without the broadest possible public support for the measure.

    The weakness in the system is that it requires Government lawyers to call out the Executive – to play the political embarrassment card. What the EFB proves is the in the face of an attempt at the most comprehensive regulation of the freedom of expression in our history that cherry picked the most restrictive provisions from other common law regimes (ignores the lack of such provisions in our own jurisdiction or in Australia and ruling out US case law on a dissimilar jurisdiction basis) Crown law concluded that while the EFB was at the outer limit it was justifiable in a free and democratic society. And this from the lawyers who specialize in human rights! They were simply not prepared to embarrass the Executive which was very determined to have its way on this issue. And in doing so they did the law a disservice – it’s not just a “settling down issue” our electoral laws are in a shambles.

    I doubt there was any attempt by Crown law to negotiate the Executive down. Heavens if the EFB (Mark I) was the result of such informal discussions to get a Crown law pass opinion then I would love to see the EFB (Mark 0.5). Perhaps an incoming Attorney General could waive privilege over any such advice – I doubt there any such advice.

    2. EFB (Mark II) a triumph of the legislative process: the “balancing process” won.

    Actually most of the politicians as legislators didn’t understand the drafting and the select committee process was a travesty.

    When I hear lawyers speak of a “balance” in relation to the freedom of expression I want to vomit. It’s lawyer speak for the reduction in one’s rights actually. Factually, New Zealand is less free now under the EFA than it was before it. And our political process isn’t less immune from the influence of money (and specialist knowledge that it buys) but more susceptible. What’s more we now have more uncertainty about our electoral rules that we have ever had in our history.

    And actually the countervailing interest that goes into the balance in this case is a simple assertion of prejudice.

    Let’s cut to the quick – the notion that wealth can buy votes is simply a prejudice; an assertion unsupported by the evidence. And of course if this were the mischief that the EFA was intended to address, this wasn’t made explicit by the Crown law advice which studiously avoided the entire rationale for the legislation.

    With respect to both Dr Rodney Harrison and Dean Knight, too much of a concession is made to this prejudice. Lawyers struggle to understand it because like many a prejudice it contains a grain of truth and taps into basic myths about New Zealanders and fairness.

    Best way to view the prejudice is to apply it in other contexts – “legal arguments are always won by the wealthy.” In this light the assertion is ridiculous as most lawyers would concede. Money in the law matters as it matters in political competition. But it isn’t the only factor or necessarily the most important. In the law and in the competition of ideas generally, the content of the idea matters. If the prejudice were correct then the Soviet Union would still be with us. There the entire wealth of the nation and the full coercive powers of the state were used to advance a political idea. The state collapsed because the organizing idea was crap.

    3. The EFA: a sound, pressing and substantial philosophical foundation?

    This is actually the EFA’s basic weakness. Whilst everyone has opinions not all ideas are equal. The legal and philosophical conceit of the EFA is the notion that the law can balance ration and allocate the expression of political ideas as if all ideas are of equal merit. Thus it’s only fair that if all ideas are of equal merit all should be equally restricted in their advocacy. It’s the sort of legal overreach that is attempted in banana republics of an authoritarian bent.

    New Zealand law has never attempted to regulate the market place of ideas in this fashion – our forebears would scoff at the attempt.

    If some ideas are objectively better than others, what should the legal response be? Well it’s not always apparent which ideas are better at first; some emerge as a result of evolution by natural selection; thus the legal response should not be one of regulating and rationing the expression of ideas, but rather freedom.

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  18. Fisiani (944 comments) says:

    I have been proven correct yet again!

    Not a single cheap from the left in defence of the EFA all day pointing out a single flaw in Rodney Harrison’s critique.
    How about some intellectual honesty and a public apology for foisting this assault on freedom of speech on us.
    I can only assume that you are all busy rearranging the deckchairs on the 9th Floor and checking out that the shredder is still still working.

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  19. polemic (360 comments) says:

    I will stand up and defend the EFA-

    If the EB’s hadn’t tackled Labour and basically got the yellow star treatment we wouldn’t have the EFA and never before has an action in one election been so profoundly effective in gaining votes for a Party in the following election.

    Three cheers for the EFA.
    Three cheers for the EB’s
    To date it singularly has been the most effective item to dissolve Labours middle class Battlers who value freedom of speech and can clearly see the sea of learned reports condemning the EFA yet they ram it thru !!

    Winston First and the Greens were critical to the bills survival so they will have to drink the poison as well.

    Most people very clearly see the EFA as a sledgehammer to crack open peanut.

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  20. John Boscawen (146 comments) says:

    Toad, you talk about two options…..one being the previous law that was exploited by the Brethren remaining in place.

    Rosslyn Noonan made it very clear to the Select Committee considering the bill during her evidence on 18 October that the EFA would not necessarily “stop” the Brethern. There is nothing to stop six independant Brethren acting alone spending $120,000 each. The EFA will not stop this, in the same way that it does not stop someone from wanting to structure a $200,000 donation to either the Labour or National Parties ( or any politcal party for that matter) in such a way that it is not disclosed to the wider NZ public.

    Rosslyn Noonan also made it clear that reasonable limits could be justified. The HRC judged these as restrictions for no more than 3 months before an election and allowing third parties to spend up to $300,000.

    Parliament ignored the Human Rights Commission on these issues and passed restrictions which are more than three times longer and alow third parties to spend less than half now allowed. Given parliament also ignored the HRc’s first choice of withdrawing the bill and starting again, the least they could have done would have been to agree to these lesser limits.

    Dr.Harrision is to be congratulated.

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  21. John Boscawen (146 comments) says:

    One furthur comment. I have always argued that freedom of speech is an issue for all New Zealanders. It does not matter whether you are a supportter of left wing or right wing politics, or non aligned, but one of our most fundamental rights in a democracy is our right to open and free elections. The HRC in its submission stressed the importance of informed electorate. It is important that all citizens ( and not just political parties ) should be free to express their views in a reasonable manner and that we vote in an informed manner having considered all the prevailing opinions.

    The EFA seeks to unreasonably restrict the rights of ordinary Kiwis to participate in the electoral process.

    We are lucky to live in a country where people of the calibre of Rosslyn Noonan, Dr. Judy Mc Gregor, Mike Moore and now Dr. Rodney Harrision are prepared to put partisan politics aside and have the courage to say the law is wrong.

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  22. toad (3,669 comments) says:

    John Boscawen said We are lucky to live in a country where people of the calibre of Rosslyn Noonan, Dr. Judy Mc Gregor, Mike Moore and now Dr. Rodney Harrision are prepared to put partisan politics aside and have the courage to say the law is wrong.

    I agree re Rosslyn Noonan, Judy McGregor, and Rodney Harrison. Not so sure about Mike Moore though – he’s always struck me as flakey and unprincipled.

    I agree with you that “It is important that all citizens ( and not just political parties ) should be free to express their views in a reasonable manner and that we vote in an informed manner having considered all the prevailing opinions.”.

    But there must be some constraints on third party expenditure, as the Exclusive Brethren exercise demonstrated. Otherwise we will have Owen McShane’s people peddling scientific fallacies such as “ruminant methane emissions are carbon-neutral” with unlimited funds from vested interest who would like the public to believe this.

    An “informed manner”, yes, but not a licence to spend unlimited funds peddling lies, as the Exclusive Brethren did last time, and outfits like Owen McShane’s totally inappropriately named “Climate Science Coalition”, who actually deny the science, threaten to do this time.

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  23. Chris Diack (723 comments) says:

    Cane Toadie

    Of course sets himself up as the arbiter of what are the “right ideas” and what are the “wrong” ones. The wrong ones (those he doesn’t like) will only win because they are supported by “vested interests” who have “unlimited funds” i.e. religious zealots and denying non-believers in the climate change religion.

    In his world view it’s always the “wrong ideas” that attract the money and therefore prevail. The “right ideas” always fail because they can never attract the funding that the wrong one’s do – people just won’t part with their money for the right ideas.

    So in order to protect all of us from over exposure to the wrong ideas to to redress the under exposure of the right ideas (that don’t rake in the money) he supports removing the freedom from all us – now we face Government registration and rationing, and if we don’t register and/or exceed our ration we are criminalised. All ideas (for there are only two in any argument) are now balanced. Of course if were were being logical we would get fully with this brave new world: take money using the coercive power of the State off those who freely give their money in support of the wrong ideas and give it to those who advocate the right ideas which are deserving of funding especially because people are unwilling to do so voluntarily. Perfect – a state of nature where all is in balance.

    All the Exclusive Brethren did was exercise a fundamental right that every New Zealander has long had. It wasn’t a loophole or error or omission under the Electoral Act.

    And in fact democracy worked in New Zealand – despite the problems with authorisation statement, the authors and backers of this political pamphleteering became quickly know and those voters who were interested enough to do so took that into account.

    Such arrogance from our Toadie friend can only come from the influence of our Aussie friend – pink in the middle, green on the outside and carrot top on top.

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  24. John Boscawen (146 comments) says:

    Toad perhaps Mike Moore’s stand on the EFA might cause you to rethink your negative opinion of him. He was one of the first to speak out against the EFB. In late September,if I am correct, but certainly well before I commenced my legal challenge against the Attorney General in late October and then subsequent advertising campaign. When he spoke out he was attacked personally and not on the calibre of his argument which is now clear for all to see, perfectly correct. He continued his opposition into the new year, calling for its repeal, firstly becasue of his concerns for freedom of speech in NZ, but also I suspect his concerns that it was an issue that might contribute to the defeat of a Labour government.

    As regards limits, the HRC is perfectly happy with limits. However they argue they must be reasonable. When the EFA was passed it imposed rights on freedom of speech and the ability to participate in the electoral process far beyond what they thought was reasonable. The regulatory period was extended to 10-11 months, one year in three. No other democracy has restrictions so severve.

    Similarly the maximum expenditure of parties was restricted to $120,000. The Brethren were reputed to have spent $1.2million. Why restrict New Zealanders to just one tenth of that, when the Electoral Commission said the major political parties and their candidates were entitled to spend $4.8 million each.

    The EFA was a deliberate cynical attempt by the government to pass a law that was designed to restrict criticism of it in an election year. A straight afront to freedom of speech and our democracy. The HRC stood up for our rights, and parliament ignored them. The EFA should bring shame to every MP who voted for it.

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