The Rule of Law Committee on the Electoral Finance Act

September 17th, 2008 at 2:00 pm by David Farrar

What is the Rule of Law Committee? It is a committee of the 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 QC, a former President of the NZ Law Society.

Another member is . 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 , 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.

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31 Responses to “The Rule of Law Committee on the Electoral Finance Act”

  1. redbaiter_baiter (108 comments) says:

    On the general issue of freedom of speech it appears that the government has banned access to No Minister.

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  2. Buggerlugs (1,609 comments) says:

    Cue Clark, the Greens, and all those other patsies standing with fingers in ears yelling “lalalalalalalalalala…”

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  3. redbaiter_baiter (108 comments) says:

    “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.”

    “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.”

    If a Labour-led coalition forms the new government repeal seems unlikely, doesn’t it ?

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  4. Redbaiter (13,197 comments) says:

    Yeah well obviously, now it looks like National might win and apply the law to the full, especially as it impacts on Labour, suddenly our Cheryl is worried. Any record of her speaking out against it before it was passed?? [Thanks for the link to Trevor's site. He does an admiral job of bringing us the facts the lefty mainstream media deliberately conceals.]

    “On the general issue of freedom of speech”

    Determined to make yourself one special kind of hypocrite today aren’t you, Mr. “BLOG PRODUCER”.? You of all people pretending to care for free speech?? Pffft, what a sick joke.

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  5. getstaffed (9,189 comments) says:

    It would be interesting to hear from the Minister of Justice…

    Unlikely. She’s too busy dusting off her dental nurse’s practicing certificate.

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  6. redbaiter_baiter (108 comments) says:

    “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.”

    One assumes that after the election it will no doubt be “tested in court”.

    “the facts the lefty mainstream media deliberately conceals.” You mean like the NZ Herald that campaigned against the EFA last year ?

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  7. Redbaiter (13,197 comments) says:

    The “BLOG PRODUCER” is so frantic he’s making Philu look like a two toed sloth on downers.

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  8. Pascal (2,015 comments) says:

    RedBaiter:

    Pffft, what a sick joke.

    Agreed. The content of this idiot’s posts aside – I wish, for once, a lefty would actually find a level of humour above:

    “Huhuhuh. Lemme pretend to be a right winger today” *scratches arse*

    Note to the lefties. It makes you look like a moronic knuckle dragger.

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  9. PhilBest (5,117 comments) says:

    Redbaiter (3598) 1 1 Says:
    September 17th, 2008 at 2:14 pm

    “Yeah well obviously, now it looks like National might win and apply the law to the full, especially as it impacts on Labour, suddenly our Cheryl is worried. Any record of her speaking out against it before it was passed?? [Thanks for the link to Trevor’s site………”

    I share your nasty suspicions, Redbaiter, especially when our own Mr Farrar has always talked in terms of the EFA’s spending limits being “too low”, and the time limits as “too short”………what part of “freedom of speech” does Mr Farrar and the Nats not understand?

    As you have commented, even the non-Socialists sound most of the time as if they are reading off the same page as the Socialists. Here is Hayek, in 1949, prophetic, eh?

    “The effect of this filtering of ideas through the convictions of a class which is
    constitutionally disposed to certain views is by no means confined to the masses.
    Outside his special field the expert is generally no less dependent on this class and
    scarcely less influenced by their selection. The result of this is that today in most parts
    of the Western World even the most determined opponents of socialism derive from
    socialist sources their knowledge on most subjects on which they have no firsthand
    information. With many of the more general preconceptions of socialist thought, the
    connection of their more practical proposals is by no means at once obvious; in
    consequence of that system of thought become in fact effective spreaders of its ideas.
    Who does not know the practical man who in his own field denounces socialism as
    “pernicious rot” but, when he steps outside his subject, spouts socialism like any left
    journalist?…..”

    I hope against hope that John Key MEANT IT when he tore up the EFB in parliament and said “we will repeal this legislation”. I hope he meant, lock, stock, and barrel. NO spending limits. NO time limits. Otherwise, we are denying free speech to SOMEONE, and, as many Libertarian writers like to say, we make the most wealthy among us into “the new Jews”.

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  10. PhilBest (5,117 comments) says:

    What we need is a “citizens revolt” against the EFB, (akin to “people power” in the Phillipines in the 1980′s), THIS ELECTION. I suggest that articles like the one by the “Rule of Law Committee” above, and the one by Bruce Sheppard on the next thread, and some of Michael Bassett’s essays, and some of Ian Wishart’s, and some of DPF’s own postings and some very good pieces of truth-telling on other blogs, need to be copied off and scattered around the country in the thousands, by every man and his dog……..

    In fact, if somebody took to doing leaflet drops from an aircraft flying into NZ airspace from no-one knows where on a daily basis, I bet the bloody socialists would suddenly take an interest in having some operational jet fighter planes again…….

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

    Cheryl Gwyn has criticised Our Dear Leader, that peerlessly great person, and is therefore clearly a running dog lackey of the local pro-American flunkeyist John Key, whose nightmarish policy of suppression masks his role as a kingpin of fraud and swindle and other irregularities on behalf of Emmanuel Goldstein.
    Down with Cheryl Gwyn!
    Forward the necessary circumvention of outmoded constitutional conventions!
    Forward the rejection of outmoded concepts of accountability and justice!

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  12. gd (2,286 comments) says:

    Gosh The NZLS must be pretty sure the Socialists are going to be put to the sword Nov 8 By their standards this is an all out frontal attack.

    The NZLS is usually so timid when it comes to defending the law that it jumps at its own shadow.

    the language is the strongest Ive ever seen from them. About bloody time they stood up and were counted instead of hiding but good on them for at least speaking out now

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  13. redbaiter_baiter (108 comments) says:

    “What we need is a “citizens revolt” against the EFB,” Shouldn’t that be EFA ?

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  14. Ross Miller (1,664 comments) says:

    Hmmmmmmmm gd … was thinking the same thing too; all those ‘Judgeships’ suddenly gone abegging perchance a giant leap backwards.

    The list of the ‘contaminated ones’ maintained by H2 grows bigger by the day.

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

    One of the most questionable things about this whole fiasco is the Government’s reliance on a single recommendation by Val Sims and her subsequent approval of the EFB as not being in contravention of the BoRA. Given that the EFB cherry-picked pieces of electoral Law from GB and Canada, but neglected politically unpalatable bits to NZLP (like TU reform) the best that Sims could come up with when push came to shove was that in difficult cases, we usually ‘defer to governments’ when it comes to deciding how far an Act should be in contravention of BoRA. She also disregarded the length of the NZ electoral cycle as unimportant, for similar reasons.
    Repugnant, because the original ‘cut and paste’ draft was not given a proper scrutiny by a body of qualified professionals, but rather left to one of the lesser qualified members of the Law Commission http://www.lawcom.govt.nz/Commissioners.aspx (sorry, but there it is) for no other reason than so, if asked in Parliament about whether the EFB contravened BoRA, Helen and Michael could ‘legally’ stand up and say ‘No.”
    They used the Law Commission as a rubber-stamp, if not as a condom.
    But hey, that’s ok – it could never happen here, could it?

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  16. GerryandthePM (328 comments) says:

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

    That stated objective was euphemistically applied to conceal the intent of the Labour led coalition.

    The indications that it is having the reverse effect suggests “unintended consequences”, whereas this Act very clearly sets out the Labour led Government’s intention.

    They were never going to be swayed from their objective of shutting down the opposition.

    How successful Labour and it’s partners have been will be established on November 8.

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  17. redbaiter_baiter (108 comments) says:

    Absolutely Gerry.

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  18. Dr Robotnik (533 comments) says:

    Ahh fuck it, at least the “chilling effect” may have some impact on “global warming”.

    Unlike the fucking ETS or whatever those monkeys call it.

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  19. gd (2,286 comments) says:

    Ross M yes its wonderful watching the formerly scared and frightened NZLS at last regaining their voice Over the past 9 years its been appalling to see them sitting on their hands lest they offend and upset their political masters.

    They have sat and watched the most dastardly laws passed without a wimper such has been their terror.

    It took the EFA to finally get them off their sad arses and into some sort of action. It is to be hoped but Im not holding my breath they will do the job they are supposed to do when we get a Nat government

    Professional bodies who want to be regarded with any respect must stand up and speak out and not hide away.they must question and debate the issues not just roll over.

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

    Please don’t diss monkeys, robotniik.
    Some of my best friends are monkeys.

    Actually, my only friend is a monkey.

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  21. Nikki Pender (18 comments) says:

    Doug Bailey of Russell McVeagh (who is also a member of the Rules Committee) has written a very good piece in today’s Dominion Post. He is advocating that NZ move towards an entrenched Bill of Rights (like the US and Canada) which would entitle the courts to strike down legislation if it is inconsistent with fundamental rights and freedoms.

    Unfortunately, the article doesn’t appear to be on the Stuff website yet.

    Meantime, John Boscawen’s tireless campaign continues. We are in the Court of Appeal on 23 October. This will be the third attempt at persuading the courts that they should supervise the Attorney General’s statutory duty to report Bill of Rights inconsistencies to Parliament (and, in this case, rule that he was wrong not to do so with the Electoral Finance bill). We also want the court to make declarations that the EFA itself is inconsistent with the Bill of Rights as it stifles freedom of political speech and participation in parliamentary democracy.

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  22. side show bob (3,660 comments) says:

    The NZLS approached this problem from the wrong premiss, it states “the right of political free speech is fundamental to the operation of a representative democracy”. So New Zealand is a representative democracy is it, sure fooled me. As far as I’m concerned there has been fuck all democracy. Has the NZLS had laryngitis for the last 9 years as there have been many new laws passed that have fuck all democracy content to them.

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  23. PaulL (5,874 comments) says:

    You’re all way off track.

    Don’t you know that there is solid evidence that some donations to the National Party passed through lawyers trust accounts. And, of course, the NZ Law Society is made up of lawyers – as I demonstrated above all are National Party supporters. This subcommittee of National Party toadies is just attempting to bring down the duly elected government of NZ.

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  24. kiwipolemicist (393 comments) says:

    The obvious conclusion is that Labour considers the rule of law to be secondary to whatever suits their to their own purposes. A government that has contempt for the rule of law is a totalitarian government, i.e. they consider themselves to be above the law.

    A vote for Labour/Greens/NZ First/United Future is a vote for totalitarianism.

    http://kiwipolemicist.wordpress.com/2008/09/03/the-red-squad-the-labour-party-and-the-election/
    http://kiwipolemicist.wordpress.com/be-very-careful-who-you-vote-for-in-2008/

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  25. Alan Wilkinson (1,816 comments) says:

    Lee C is quite right about the Law Commission’s complicity. Val Sim has a long history (see the Peter Ellis case) of bureaucratic subservience to political mistresses – no doubt why she was appointed to the Commission and then selected to author the desired opinion.

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  26. redbaiter_baiter (108 comments) says:

    “A vote for Labour/Greens/NZ First/United Future is a vote for totalitarianism.”

    I thinks perhaps you are being a little overwrought.

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  27. John Boscawen (146 comments) says:

    The Rule of Law Committee report and the recent criticism of the EFA by Dr. Helena Catt of the Electoral Commission ( that it is was having a chilling effect on participation in this year’s election) are furthur and continuing confirmation of the anti-democratic nature of the EFA.

    The fact that the Clark/Peters government aided and abetted by the Greens were prepared to pass such legislation in a desperate effort to restrict freedom of speech for the full election year in a last desperate effort to be re-elected will go down in our history as one of our darkest hours.

    Why should I have to go to court to get a Declaration of Inconsistency?

    The EFA had nothing to do with transparency of donations. A myth the Greens continue to perpetuate on their blog even to this very day ( they are surprised political parties are not disclosing more donations of over $20,000 this year. I can not think why? The Velas were reputedly able to give NZF 5, $10,000 cheques from separate entities in 2003 without disclosure and exactly the same thing can be done in 2008 despite the EFA, provided those companies use their own money.)

    On the other hand the EFA had everything to do censorship of a kind never seen before in New Zealand.

    It believe it is important Labour, NZF and the Greens suffer major losses at this eelction, as a lesson to politicans of all persuasions, for the next 20 years, that you can not blatantly cheat like this and get away with it.

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  28. John Boscawen (146 comments) says:

    Alan, Val Slim authored the report while she was still at the Crown Law Office.

    She was appointted to the Law Commision a few months later.

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  29. Pascal (2,015 comments) says:

    redbaiter_baiter:

    I thinks perhaps you are being a little overwrought

    At which stage in your life are you actually going to wake up? The Labour Party led government has slowly been politicising the public service. They have created the EFA which according to people like the Rule of Law Committee, the Human Rights Commission and so on and so forth is a chilling, undemocratic law. You have seen it hamper attempts at free and open political discourse.

    Was this an accident?

    No. It was the intent of that law. It is the intention of the Labour Party and their willing cohorts, the Greens, to create a totalitarian state. Their decisions, their attitudes, their liberties with the public purse and willingness to retrospectively validate their theft point at it. I’ll throw in a healthy dose of maligning religious minorities and using them as a scapegoat for gaining more political power.

    What is that if not the first steps towards totalitarianism. We have examples in recent history of these very circumstances. Anybody voting for them is voting for that. You are the one who is too blind to see the slow march towards it.

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  30. Murray (8,838 comments) says:

    Can we offest this “chilling effect” against the 2 billion we have to give to the Russians for being so clean and green?

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  31. Alan Wilkinson (1,816 comments) says:

    John B, thanks for the clarification on the sequence. Having VS on the Law Commission will chill any prospects of desperately needed reforms for our justice system.

    A dead weight in favour of bureaucratic inertia and ineffectiveness in everything except backside protection for the status quo and existing political influences.

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