The Electoral Finance Act threesome

July 10th, 2008 at 2:21 pm by David Farrar

Three articles on the to cover today.

First we have Tuesday’s story about politically loaded questions in surveys may become an expense:

However, head Helena Catt said anyone who tried to use push-polling or politically loaded survey questions thinking it was exempt from inclusion in the election spending limits could get caught out.

She said the limits of the provision were still untested, despite a similar clause existing under the previous law.

“The exception is for opinion polls and surveys, so it depends how one defines those. We would have to decide what a poll or survey is under that provision, for example whether it covers push-polling or only includes polling by polling companies, and whether there is an ethical dimension to it.”

One can’t disagree with anything there. However there are some interesting issues around the Privacy Act and the Electoral Finance Act in play. Take for example phone surveys where parties call people up and ask their views on some issues. This is research which is exempted under the EFA (and the old Act also).  The reason the parties do it is that they may use the data for a future communication (which will count as spending).

Now if you are going to be recording down personal data about someone (ie their response to a survey), you need to identify who you are calling on behalf of under the Privacy Act. So a party member calling might say “I am calling on behalf of xxxx, the local yyyy party candidate”. That way people know who they are speaking to, and can decide whether to respond or not.

But electoral authorities are worried that by saying the name of the candidate, even if just for purposes of identification, you might then be an advertisement.  So again it is all murky.

The High Court has indicated there are limitations – in its judgment on Winston Peters’ legal challenge of Bob Clarkson’s election spending after 2005, the Tauranga High Court observed push-polling was not covered by the exemption.

The court said the exemption for polls “reflects the facts that polls by definition do not seek to persuade, but rather to ascertain public opinion”.

This is quite correct – the research must be to ascertain not persaude.

Adding survey questions to material which was otherwise an election advertisement would also not make the entire brochure exempt from the spending cap.

The Electoral Commission is considering a NZ First advertisement which includes a survey, but the party claimed it is not an election advertisement.

The advertisement, which does not have an authorising statement, includes surveys on the China free trade agreement, and any sale of Auckland International Airport or the dairy industry.

Leader Winston Peters has argued it was not an election advertisement because it did not refer to its stance on policies of a future Parliament.

I think this is a perfect example of something that is not a genune survey. The NZ First advertisements were clearly designed to persuade but to ascertain opinion. It will be very interesting to see what the outcome on these will be.

Law Lecturer was on National Radio yesterday talking about the EFA and the . He blogs about it here.

One part I will quote:

Now, it must be remembered that, at that stage, when the Bill was assessed and proceedings were filed, we were talking about the First Reading of the EFB – the more egregious version. Very few commentators and scholars thought the initial value judgement was particularly robust.

However, many of the restrictions were watered down by the Select Committee and the Mark II version of the Electoral Finance Act that was actually passed did not limit the freedom of expression to the same extent. Arguably, questions of consistency with the Bill of Rights were in the zone where reasonable people could differ.

I think Dean is being very nice when he says few people thought the initial value judgement was robust. This is referring to the advice that the original Electoral Finance Bill did not breach the Bill of Rights. It still staggers me how a bill which would have forced NZers to file statutory declarations just to express their view on a political issue could be judged not to shatter the Bill of Rights. Rather than sack the person at who write such a flawed opinion, the Government promoted her to the Law Commission.

Dean is right when he says reasonable people can differ on whether the final version of the EFA is consistent with the Bill of Rights. By implication this suggests that no reasonable person could have argued that the original Bill was consistent. Yet that is exactly what Crown Law did.

Finally we turn to an article on Newswrire about a possible EFA breach by National MP .

A local website is The Flying Pickle. It is a local community site for the suburbs of Korokoro, Maungaraki and Normandale. Any local resident can post stories there so Katrina had been putting articles on there attacking Labour. They were under her name, but unless the website is a newsmedia site or a blog, then they may count as election expenses and need an authorisation statement by her financial agent.

All very stupid. We should encourage MPs using local sites and the transparency requirement is met by posting under her name.

I am increasingly of the view that after the election the replacement for the Electoral Finance Act will need to have a fairly conservative definition of advertising so that it doesn’t regulate every form of advocacy. I also think the transparency requirements need to be totally revised as it is ridicolous that an MP needs an outside party to be authorising their parliamentary statements.

This is what Linda Clark was talking about in her Listener article – the EFA is makng it hard for MPs and candidates to communicate with the public at they very time we want communication.

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10 Responses to “The Electoral Finance Act threesome”

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

    What a lascivious heading DPF! You’re not trying cheap attention-grabbing tricks to up your readership are you?

    The following quote from public law lecturer Dean Knight’s blog pretty much sums up my position on the EFA:

    obviously the EFB restricts people’s right to publish advertisements and therefore limits right to the freedom of expression. However, when CLO and the AG assessed the EFB, they took into account of the fact that spending limits and transparency are designed to ensure fair elections, promote participation in democracy, etc – in themselves important governmental imperatives. (Arguably, arising also from or implied from the right to “vote in genuine periodic elections” protected by section 12 of the Bill of Rights.)

    Their value judgement was that the provisions were generally proportionate and justified, recognising that, if this question arose in court, the courts usually defer to the political value judgements on this point, especially about whether or not there are other less rights-infringing means of achieving the same outcome.

    The argument by the activist right, that the EFA is anti-democratic, really is hyperbolic and silly. Yes, the law lacks clarity in some areas, but these glitches can be fixed, and it would be an over-reaction to scrap the law entirely.

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  2. pushmepullu (686 comments) says:

    After the election John Key and National will have little problem replacing the EFA, because they will replace it with *drumroll* nothing at all, thus ensuring free speech returns to New Zealand for the first time in nine years.

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  3. ross (1,437 comments) says:

    > Rather than sack the person at Crown Law who write such a flawed opinion, the Government promoted her to the Law Commission.

    The person you refer to, Val Sim, has recently been appointed by Annette King to the Criminal Justice Advisory Board, which has been set up to restore public confidence in the criminal justice system.

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  4. Chris Diack (741 comments) says:

    Dean Knight simply repeats the Val Sim rational in opinion on the EFA ie “reasonable people can disagree so there is a deference to political judgment” on this the biggest ever issue dealing with our fundamental rights.

    The problem is that the section 7 process is intended to inform the legislative process not defer to the wishes of the Executive. And that is actually the deference that was practiced – a deference to brute power. Crown law was asked to make a legal judgment and it came to an opinion that (using BORA speak) no reasonable lawyer could possibly come to – unless one intended to defer to the powerful.

    There is no way the EFA even in its amended form is a proportionate response to the mischief – which was after all simply a group of citizens exercises their fundamental common law rights of free speech. And the authorisation statement problem was at the inconsequential level.

    What Val Sim proved is that our fundamental freedoms are not safe in the hands of most lawyers, particularly those in the employ of the Government – they do not in most cases process the character to resist a determined Executive.

    The real story of the EFA saga is that Ms Sim explicitly proved that the s7 process is irrevocably broken.

    Interestingly, if the Government lawyers had done a proper job, there might just have been a legislative regime that survived more that 11mths and the coming election. Instead they have aided and abetted making our electoral laws a political football and uncertain. Legal uncertainty over electoral matters can impact on legitimacy.

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  5. PhilBest (5,121 comments) says:

    Sorrr-eeeeeee, Roger Nome. You can’t keep defending the EFB AND keep complaining about a “policy vacuum” from National. Labour DESERVES to lose on THAT ISSUE ALONE.

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  6. gd (2,286 comments) says:

    this Val Sim person appears to be a real problem Can anyone shed some light on her and her back ground.

    Whose pulling her strings Should she be ‘outed” in the public domain like Veitch?

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  7. deanknight (263 comments) says:

    If I can expand on my rather bald statement that people are discussing.

    A number of people think CLO just screwed up the value judgement.

    Personally, I take issue with the advice on a different basis. I think they applied erroneous methodology (albeit methodology which I understand they routinely apply) – although I’m not sure other scholars necessarily agree with my criticism.

    My concern is this statement in their advice:

    “In reaching my conclusion I have taken into account that the regulation of the electoral system ultimately depends upon political judgments and is an area in which a wide margin of appreciation is afforded to Parliament.”

    While that is undoubtedly correct, I’m not convinced it should be applied, on an ex ante basis, to advice feeding into that process where those political judgements are to made. Yes, the courts will respect and defer to the judgements made by politicians, but that respect needs to be earned. If politicians grapple with the balancing process required in the judgement, then the courts will defer to them and accord their judgement a reasonable degree of latitude, especially when its a matter on which there is not one “correct” solution or answer (and that means the judgement of the Human Rights Commission is not necessarily any better than CLO’s, the AG’s, the Nats’ or yours or mine…)

    The risk of incorporating “off the shelf” deference into the vetting process is that it gives the politicians the impression that the legislation is fine and they need not grapple with the Bill of Rights implications. That’s not the case in my view.

    We saw this in some respects early on when the CLO advice was trotted out to summarily repel arguments about the Bill of Rights. However, I think we also saw – later on – more genuine attempts on behalf of politicians on both sides of the House to come to terms with the balancing process and to grapple with where the line should be drawn. Thankfully the initial comfort given by the CLO opinion did not taint the entire process. And, in many respects, the debate about the EFB was probably the most sophisticated and intense debate about its Bill of Rights implications. Ultimately, a success, rather than the failure of the Bill of Rights.

    One way I’ve been thinking about the methodological questions is in terms of traffic lights. That is, I wonder if the role of the MoJ/CLO and AG is to vet the legislation according to 3 categories:

    1. Green light: legislation which clearly does not raise any Bill of Rights implications, such as where the measure is clearly justifiable.
    2. Orange light: legislation which has Bill of Rights implications but is in a zone where its justifiability is finely balanced and significant political evaluation of the proportionality of the measure to the rights breaches is needed. If this is done, then the courts are likely to defer to and accept these judgements.
    3. Red light: legislation which raises serious Bill of Rights implications which are so inconsistent that they are not capable of being justified.

    I thought the EFB(Mk I) was either in the orange or red light zone, probably the latter.

    But I’m happy to go on record in saying that I think the EFA (Mk II), as passed, fell very much in the orange light category. There are strong public objectives being achieved by the legislation. While the legislation of course places limits on rights, these within the zone of justifiability. The legislation is not quite as I might have drafted it but the measures are within the discretionary area of judgement such that its the legislation is not inconsistent with the Bill of Rights.

    Of course, there are still some quirks and anomalies in the legislation we’re still working through in the “shake down period” (nothing new when dealing with new legislation). But these will be resolved to give some certainty. The legislation will be interpreted benevolently to give effect the purpose of the Act and, as much as possible, ensuring compliance with rights. The ludicrous hypothetical interpretations that people have been dreaming up won’t result – consistent with standard interpretative practice, the EC and the courts will strive to ensure they don’t result!

    In any event, the culture of triviality where people are dobbing in each other for the most minor of breaches shouldn’t distract from the fact that, at its heart, the legislation has a sound, pressing and substantial foundation. It would be nice to continue to debate that philosphical foundation, rather than being distracted by side-shows about whether balloons or tattoos need promoter statements…

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  8. Chris Diack (741 comments) says:

    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 wick – 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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  9. Graeme Edgeler (3,289 comments) says:

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

    Except where the arguments were against conscription in World War One. Or in favour of the watersiders in 1951. Or opposed to the taking at Maori land at Parihaka. New Zealand has a rich history of telling people whose ideas it doesn’t like that the law will stop them.

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  10. Chris Diack (741 comments) says:

    Graeme Edgeler

    “Except where the arguments were against conscription in World War One. Or in favour of the watersiders in 1951. Or opposed to the taking at Maori land at Parihaka. New Zealand has a rich history of telling people whose ideas it doesn’t like that the law will stop them”

    Like taking candy Mr Edgeler

    Let’s deal with Parihaka – tail end of the land wars. I hardly think that in any way analogist with our current times.

    WWI and conscription ……… mmmm a theme is emerging.

    And then ’51: a proclamation issued under the Public Safety Conservation Act 1932 (now repealed) with emergency regulations gazetted the next day and based on Queensland regulations drafted in 1948. The PSCA was passed as a result of a riot in Auckland in 32 to deal with Great Depression era disorder.

    Of course if the PSCA was so in keeping with our legal traditions why oh why was it repealed? And the regulations themselves dealing with banning publications “intended or likely to encourage, procure, incite aid or abet a declared strike” do look utterly normal even for the enlightened times of 1951.

    Mmmmm can you pick a theme emerging.

    You essentially cite three exceptions in order to disprove the generality i.e. that no government in New Zealand has attempted such an over arching regulation of the freedom of expression as was attempted in the EFB and is attempted in the EFA.

    I perhaps could have amended it to say… outside time of internal or external war of serious internal disorder no government has

    The exceptions actually prove the rule.

    The other problem with your underlying assertion is that you offer it against what clearly is the trend and away from such authoritarianism. I do concede that the EFA likewise runs counter to the general trend in New Zealand law.

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