Electoral Finance Act in Court of Appeal today

October 23rd, 2008 at 8:05 am by David Farrar

The is hearing today an appeal in the case has brought against the Attorney-General over whether the is consistent with the Bill of Rights Act.

I blogged back in June the High Court decisions:

As I said earlier the protection of parliamentary privilege saw the challenge to the Electoral Finance Bill dismissed. The similar case against the Electoral Finance Act also was dismissed on the grounds it was asking the Court for an abstract ruling (ie just asking whether the EFA breached the Bill of Rights Act).

The hearing today is before Appeal Justices Glazebrook, O’Regan and Arnold. Originally it was to be heard by just one permament Court of Appeal Judge and two High Court Judges, but now all three Judges hearing it are permament members of the Court of Appeal – possibly an inidcation of the importance of the case?

A copy of the appellants submission is here: boscawen-submissions-ca.

What was sought:

In the High Court proceeding, the appellants sought declarations that provisions in the Electoral Finance Act 2007 (“EF Act”) were inconsistent with fundamental civil and political rights affirmed by the Bill of Rights Act. As the offending provisions in the EF Act germinated from the original (“EF Bill”), the appellants also claimed that the Attorney General should have drawn them to the attention of the House of Representatives during the legislative process. The appellants sought declarations that the Attorney breached his statutory duty under s.7 by failing to do so.

And what happened in the High Court:

Clifford J in the High Court granted the Crown’s application and struck out the ASOC in its entirety. Clifford J expressed reluctance to make declarations of inconsistency, particularly on an abstract basis, without clear jurisdictional guidance from this Court1. He also followed the 1994 High Court decision of Mangawaro Enterprises Limited v Attorney General (“Mangawaro”)2, and obiter dicta comments from McGrath J in Awatere Huata v Prebble (“Awatere Huata”)3 and found the Attorney General’s exercise of statutory power under s.7 to be non-justiciable.

Most of the argument will be around whether the Court can make a declaration of inconsistency regarding a law and the Bill of Rights Act. To date no court has done so, but Boscawen cites previous judgements that have alluded to the desirability of doing so. It will be an interesting outcome either way.

11 Responses to “Electoral Finance Act in Court of Appeal today”

  1. Lee C (2,987 comments) says:

    What will it achieve – the EFA has done its job, and two weeks away from the general election, Labour still disregards the laws it set out for others, and dips into the taxpayer-purse to spend on electioneering, while lesser mortals are left too confused afraid or intimidated to enjoy unlimited freedom of expression because they couldn’t afford to pay the fines if they were to fall foul of the Law.
    This has been a phony election. Phony because it is about ‘trust’. Phony because Labour never intended to obey the EFA. Phony because the EFA supporters are a bunch of sanctimonious self-serving prigs who claim to be doing it ‘for the people’ when the ony ones they are doing it for are for themselves.
    Should be called the ‘EPA’ –
    Electoral Phonies Act.

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  2. kiwipolemicist (393 comments) says:

    The government has absolute power because there is no law that constrains the government, and if the EFA conflicts with the Bill of Rights then Herr Helen may just alter the BoR. There is nothing to stop Helen cancelling the election if she also finds that to be inconvenient. NZ needs a constitution which allows the citizens to control the government and stops the despotism of evil and dangerous sociopaths like Helen Clark, Sue Bradford, etc.

    There is a body of opinion amongst high-level constitutional lawyers saying that NZ, Australia and Canada all have illegal governments (with no power to pass laws, enforce laws or collect taxes) because those governments stole sovereignty from the citizens.


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  3. Murray (8,822 comments) says:

    Be definition when something has been passed into law the BOR Act cannot be used to get circumvent it. Because the BOR Act is only an act and does not require things to comply with it or for it to be amended so that existing laws are consistant with it.

    This is the loophole that Labour used when they rushed through the EFB – lying to a judge in the process.

    Could be time we should look at a consititution or setting up a guillotine on the steps of parliament. Evidently our rights have become a nuisance to the Labour party and one or the other will have to go.

    I vote them because I quite like having rights, even if they are just illusions at the moment.

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  4. david (2,340 comments) says:

    It has been said for a long time that the EFA only had to get Labour through this election. Plenty of time then to amend or rehash it afterwards.

    Those pundits who made that claim were absolutely on the button UNLESS Labour get tossed out on their sorry asses and the EFA is used in a series of court cases and electoral petitions against them (yes, even the defeated ones) and they are found guilty of fraud and corruption.

    Nothing like a few court cases to empty the coffers and it would be rather ironic to see the asses that get bitten by the Act being mostly pink.

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  5. Redbaiter (12,012 comments) says:

    John Boscowen is a true hero.

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  6. gd (1,867 comments) says:

    Does anyone with a brain really think the Court is going to upset the 9th floor

    Come on Instructions will have been issued as to the Courts findings

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  7. mavxp (504 comments) says:

    Sir John Boscowen.

    A true knight of the realm.

    If knighthoods are ever reinstated, he should be first on the list.

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  8. Murray (8,822 comments) says:

    With Owen Glenn the next.

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  9. PhilBest (4,967 comments) says:

    Owen Glenn can be nominated for his knighthood by a grateful NATIONAL Government……..

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  10. Vinick (234 comments) says:

    Good luck to John. As others have said – he is a true hero standing up for our democracy. Rather than a knighthood though, i’m sure he’d be happy with a few party votes to ACT to get him into Parliament. Now THAT would be great to see.

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  11. OECD rank 22 kiwi (2,945 comments) says:

    John Boscowen will soon be in parliament and voting to overturn the EFA.

    Party vote ACT to set New Zealand back in the right direction.

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