A digital bill of rights

March 10th, 2014 at 4:00 pm by David Farrar

David Cunliffe announced:

Citizens will have their access to the internet guaranteed and be protected from blanket mass surveillance under Labour’s proposed digital bill of rights, Labour Leader and ICT spokesperson David Cunliffe says.

“Kiwis are technology-savvy people who rely on the internet for fundamental daily activities such as banking and communicating with friends, family and colleagues.

“Unfortunately the legal framework to protect New Zealanders’ online hasn’t kept up with the pace of technology.

“Labour will work with stakeholders to develop a digital bill of rights which would address these concerns while making New Zealand a more stable and secure place for businesses to use and store data.

I think in principle this is good idea, although of course details are key. It would be good to have perhaps a draft published before the election, so it can be critiqued.

“The highlighting of international mass surveillance by Edward Snowdon and concerns around the practices of our own Government Communications and Security Bureau has left many Kiwis feeling their online information is vulnerable.

“Such legislation would protect people from the digital equivalent of warrantless phone tapping. While it wouldn’t override current GCSB powers, it would set a principle which would be used to replace the Government’s controversial new legislation.

I’m unsure if this means any change at all. Yeah, Nah maybe.

“It would also guarantee freedom of expression, thought, conscience and religion, while still outlawing hate speech.

No Right Turn points out that hate speech is not currently outlawed, so this could be interpreted as leading to more censorship:

This sounds good – but its actually an erosion compared to what we have at present. Those freedoms, whether offline or on, are currently protected by the BORA. But hate speech isn’t outlawed in practical terms (there is a crime of inciting racial disharmony, but there was only a single prosecution under the 1971 Act, and the consensus now is that the BORA has made it almost impossible to prosecute). So that “still” hides a massive crackdown on online expression. It may be expression we don’t like, that we find hateful and offensive, but that doesn’t justify outlawing it, any more than it justifies outlawing rickrolling. Which means the answer to Labour’s proposal has to be “no thanks”. Protect freedom of speech unambiguously according to BORA standards or piss off.

And so what should be a hands-down policy win for Labour turns into a mess, because they took a good idea and poisoned it, in the process alienating the very groups the policy was aimed at winning support from. Heckuva job you’re doing there guys. Good luck with that election-thing.

InternetNZ has commented:

InternetNZ (Internet New Zealand Inc) says that parts of Labour’s proposed Digital Bill of Rights are excellent, but parts of it may be unnecessary.

InternetNZ supports guaranteeing New Zealanders’ access to the Internet. InternetNZ CEO Jordan Carter believes that this is crucial discussion to have, given the importance of Internet access to modern day living.

“Getting online is becoming essential and those who are unable to do so are at risk of becoming second-class citizens. Enshrining a right for all Kiwis to be able to access the Internet is something a modern-day society should be looking at. Whether legislation is the right answer or not aside, the issue is an important one.

“We want to see more thinking from our political parties on how to close New Zealand’s digital divide and we look forward to working across the political spectrum to provide New Zealand with the strongest digital future we can.”

In its press release, Labour also said that the new Bill of Rights would “guarantee freedom of expression, thought, conscience and religion while still outlawing hate speech.” Mr Carter says that New Zealand has law in force that already does this.

“In New Zealand we have the Bill of Rights Act. Many of the issues outlined in Labour’s proposal – and indeed in the Harmful Digital Communications Bill – could be solved if we re-worked the Bill of Rights for a 21st Century New Zealand. There is no reason to think that laws governing behaviour online should be different to laws offline.

I think the intent is good, and that having a discussion over whether we should have a digital bill of rights is a good discussion to have. I support Labour’s initiative in this area, but again the key is what actually goes in the DBOR. Make it too general and it may have no impact. Make it too specific and you could have the Government having to fund Internet connections for every household. The challenge is to find that sensible balance.

Reporting to Parliament on BORA

April 10th, 2013 at 10:00 am by David Farrar

Idiot/Savant at No Right Turn blogs that he believes the Government’s amendments to the Crown Minerals Bills to make it an offence to interfere in drilling operations at sea should be vetted against the Bill of Rights Act.

I agree.

I support the amendments, and believe that the right to protest doesn’t extend to actually interference in a company going about its legal business.

At present Standing Orders requires the Attorney-General to report to Parliament if a bill ins introduced that may not be in compliance with the Bill of Rights Act. That opinion is advisory, but can be influential. The AG did a video on this process which I blogged a while back. SO 262(1) states:

Whenever a bill contains any provision which appears to the Attorney-General to be inconsistent with any of the rights and freedoms contained in the New Zealand Bill of Rights Act 1990, the Attorney-General must indicate to the House what that provision is and how it appears to be inconsistent with the New Zealand Bill of Rights Act 1990.

But this only occurs upon introduction in SO 262(2):

An indication by the Attorney-General to the House concerning the New Zealand Bill of Rights Act 1990 is made by the presentation of a paper in the case of a Government bill, on the introduction of that bill, or in any other case, as soon as practicable after the introduction of the bill.

The solution here is to amend SO 262(2) so that there is an obligation to report on any inconsistent provisions prior to each reading of a bill. Possible wording would be:

An indication by the Attorney-General to the House concerning the New Zealand Bill of Rights Act 1990 is made by the presentation of a paper at least 48 hours prior to each reading of a bill.

The first reading captures the bill as introduced. The second reading captures any amendments made by select committee and the third reading captures any changes made by the Committee of the whole House.

Standing Orders get reviewed towards the end of each term of Parliament. Hopefully one or more parties will support such a change.

Finlayson on Section 7 reports

February 10th, 2013 at 1:41 pm by David Farrar

I got sent a link to this video of Chris Finlayson as Attorney-General talking about his role in advising Parliament under Section 7 of the Bill of Rights Act if a proposed law is unjustifiably inconsistent with the Bill of Rights Act.

I thought at first it would be one for the policy wonks only, but I think many might enjoy his typically blunt appraisals. Chris also reveals that he doesn’t just submit whatever the Ministry of Justice or Crown Law says on a bill, but will often draft his own reports or majorly rewrite their drafts.

Some quotes:

  • also (report) on a couple of members’ bill which are shockers like Holly Walker’s ridiculous lobby legislation which seems to breach almost every provision of the Bill of Rights
  • How the disgraceful Foreshore & Seabed legislation avoided a Section 7 report beats me
  • The Electoral Finance Bill, which was frankly a Stalinist piece of legislation introduced by Helen Clark in her third term to pay the National Party back for doing so well at the 2005 election, breached numerous provisions of the Bill of Rights yet it never received a Section 7 report.
  • This is the 19th floor of Bowen House. As you can see I look down on all of my colleagues in the Beehive … Don’t put that in the film

Chris also said that if he thinks a proposed bill is likely to get an adverse Section 7 report, some of his colleagues will then work with him to amend the bill so that it avoids conflicting with the Bill of Right Act.

A good Green bill

September 2nd, 2010 at 3:45 pm by David Farrar

I have advocated for some time that the requirement for the Attorney-General to advise the House if a bill breaches the Bill of Rights, should be expanded so that such opinions are not just given for first readings, but also at second and third readings.

Keith Locke has a bill, which will do effectively that and more. I hope it gets drawn and referred to a select committee. The PR says:

It will require all legislation to be checked for consistency with the Bill of Rights, and it will enable Courts to send a report to Parliament where legislation is inconsistent with the Act. The Government will be obliged to respond to such reports.

“The bill will help protect our rights, by making it harder for a government to ignore conflicts between its legislation and the Bill of Rights Act,” said Mr Locke, Green party human rights spokesperson.

“My bill requires vetting of legislation for consistency with the Bill of Rights at all stages of the parliamentary process.

There is one aspect I am not sure about:

The bill also entrenches the Bill of Rights Act, by requiring a 75% majority of the House to change it.

It should only be entrenched if 75% of Parliament vote for it to be so. A basic majority should not be able to require a super-majority to over-turn it.

Siemer v Solicitor-General

March 2nd, 2010 at 10:15 am by David Farrar

Proceedings have just started in the Supreme Court with the full bench of five Justices, and I am live blogging from the media bench.

Robert Lithgow is appearing pro bono for Vincent Siemer in seeking leave to appeal appealing a decision of the Court of Appeal.

Siemer has had a long standing feud with receiver Michael Stiassny and various items on a website he ran have been ordered to be removed. Siemer was prosecuted by the Solicitor-General for refusing to do as contempt of court, and was sentenced to jail for a finite period.

The issue is that as the Solicitor-General did not seek a term of less than three months, then should Siemer have been entitled to a trial by jury under the NZ Bill of Rights Act 1990.

A major aspect of this is whether or not use of contempt of court is a criminal process or civil process.

Chief Justice Elias is interjecting quite frequently.

Lithgow is arguing that rather than have the Court of Appeal reduce the term of imprisonment, they should have quashed the conviction for contempt and ordered a jury trial.

Finally another Justice has interjected. Not sure of his name, but the Justice sitting on the far right (from my view).

CJ Elias has interjected around a dozen times, which may be seen as scepticism, but she has also commented she is favourable to one of the arguments.

An interesting discussion on what will happen is Siemer does get his jury trial, and whether he will argue that the injunctions should not have been issued, rather than the he did ot breach them.

Lithgow concedes his client is most likely to want to argue the injunctions should not have been issued, but that this is not relevant as the court will control the trial, and can rule on what is allowed.

The Registrar has kindly given me a seating plan for the Justices, so I can now identify that Justice Anderson was the Judge referred to above. Justice Blanchard has questioned Lithgow considerably also.

It is tempting to try and conclude that the level of questioning means a Judge is hostile to the argument, but this is not necessarily the case. What I will find interesting is to contrast how the Crown Law arguments are treated.

Back now after the morning tea break. Focusing on a 1908 English case on contempt. Only other media here are Law Journal editor Bernard Robertson and NBR’s Rob Hosking.

The discussion is how to assemble a jury where there has been no criminal indictment.

The Court of Appeal has already found that the contempt process was essentially a criminal matter (unlike the High Court), but did not grant a jury trial, and instead reduced the sentence so no trial was necessary. Lithgow says main point is he received a criminal sentence originally.

If the original conviction/order is quashed, then the Solicitor-General could seek a new trial, and seek a punishment of less than three months. However it is debatable whether the SG not seeking a longer sentence means that this is binding on the court, and hence even in that circumstance could still require a jury trial.

Lithgow is arguing that a jury can be trusted to deal with a matter of contempt, as the contempt laws exist for the sake of citizens.

CJ Elias is trying to move Lithgow on, saying that if there is a right, there is a right, regardless of whether or not one thinks it is suitable for a jury.

The debate has now moved to whether or not Siemer had complied with the injunction as he did remove some material from his website. Lithgow argues there was no way to know exactly what material needed to be removed.

Justice Anderson makes the point that Siemer could have applied to the High Court to get the injunction clarified. CJ Elias says the SC will not give an advisory opinion during the hearing on the injunction. She also says that the injunction does not require the entire website to be taken down – just material that breaches the injunction.

My feeling is that Siemer is unlikely to prevail on the issue of asserting he did not breach the injunction. But on the wider issue of the right to a jury trial, still very hard to read until one hears the Crown Law arguments.

Justice Blanchard has said the terms of the injunction are not complicated. Lithgow argues what remains on the website is merely a few splinters, and how far does one go in removing material, when the vast majority has been removed.

Madeleine Laracy has just started speaking for the Solicitor-General. Says that requiring jury trials to enforce contempt breaches would lead to many

more people ignoring court orders, so they can take their chances pleading before a jury. Is now quoting my favourite Justice Scalia on how contempt is just enforcing a civil process.

Justice Anderson has asked if there is any other civil proceeding that can lead to imprisonment, now that they no longer jail for debts. Laracy responds that prison can be avoided my complying with the court orders, and is essentially a choice for Siemer.

The Assistant Crown Counsel is Briar Charmley. So far the “off-siders” have not got to speak.

Just back from the lunch break. My views of the exterior remain unchanged. Up close it is even worse. The rails look dusty, and it really belongs in a 1950s Soviet museum. However the inside is quite different. What I most like is that the court room itself is just inside from the main door, so it is really easy to access it. And the interior of the court room is lovely. I’d take a photo of it, except I didn’t apply in advance for permission – may do so next time.

Justice McGrath is asking why there should be a distinction between civil and criminal contempt. Laracy says criminal law’s aim is to punish, and civil law’s aim is to coerce to comply and is not unconditional and can be mitigated or averted by compliance.

McGrath responds that the distinction is academic because at the end of the day it is still jail. Laracy says it may only be jail if they do not comply. Quite amusing to see a former Solicitor-General cross swords with Crown Law.

Justice Wilson has also said he finds the distinction artificial.

Overall Crown Law is getting reasonably battered on the civil vs criminal argument.

Laracy says no case in NZ history has had contempt dealt with as an indictable criminal offence, and referring to the Nash case.

Have to head off now. Very dangerous to make predictions on a case when you have not read all the material, but my impressions are:

  • Siemer will not succeed at being found to have not broken the injunctions
  • Siemer will succeed at having contempt charges with no maximum term of imprisonment deemed to be a criminal matter, which could require in future a jury trial
  • But I do not think he will succeed in getting a new trial

I may be wrong on everything though 🙂

I also think at some stage the Government may amend the law so that an offence of contempt with a maximum three month imprisonment term is made available as a judicial option. This would be a sensible measure so there is something less draconian that possible indefinite imprisonment.

Financial Advisors Act

August 26th, 2009 at 2:00 pm by David Farrar

Stephen Franks blogs on the Bill of Rights Act and the Financial Advisors Act:

Last evening Doug Bailey and Dr Andrew Butler of Russell McVeagh presented to the National Party’s Blue-Libs a plea for the party to  upgrade what Andrew called “the Bill of Not Quite Rights” (the NZ Bill of Rights Act 1990). Among other recomendations Andrew urged strengthening the duty on the Attorney General to report on whether Bills before Parliament are inconsistent with NZBORA and a “forced response” from the government when there is an inconsistency,  requiring the government to say if and what it will do about  it.

Not a bad idea.

Among the Bills that desperately needed an adverse NZBORA opinion was what is now the Financial Advisers Act 2008. …

When it comes into force there will be a $100,000 fine for:

a) broker who explains on the radio or television why a company is doing well or badly and should be sold;

b) Brian Gaynor for any acid comments to discourage bad investment, or praise for strong companies, unless he can show that despite the common description of him as a funds manager he is actually entitled to an exception for journalists;

c) a broker who acts on phoned instructions from clients he’s known for decades, instead of insisting they give him orders in writing.

There’ll be a $5000 fine for:

a) b) a financially savvy blogger who earns money from ads on his blog, if he says something like, “steer clear of Bridgcorp/Blue Chip – Petriecivic/Bryers will lose your money”;

Sounds like a case of good intentions gone awry.

Parole (Extended Supervision Orders) Amendment Bill

April 5th, 2009 at 11:04 am by David Farrar

I have no problems with the substance of the Parole (Extended Supervision Orders) Amendment Bill which allows child molestors to face parole type conditions for up to ten years after their sentence.

But I share the disquiet that this law change was done with no select committee hearing, especially when the Attorney-General has said that the law change was more than just fixing a technical error.

The best analysis of this comes from Claudia Geiringer on the Vic Law School Blog:

The government argues that in doing so, the Bill is simply re-instating the status quo that existed prior to 2007. It says that an amendment to the legislation in 2007 inadvertently restricted the reach of the regime, and that this Bill reverses the position. It seems that it is on this basis that the House gave leave for the Bill to be introduced and read on the same day. (Usually, Bills must sit on the order paper for three days following introduction before they can be read.) This avoided the necessity of the government bringing a contentious motion for urgency in order to push the Bill through, though presumably it would have done so had leave of the House been refused.

It is interesting that the House (including the Greens) gave leave for this to be done.

The Greens say they gave their blessing in this case because they had been told the legislation only made a technical change. Problem is, the government’s own senior law officer – the Attorney-General – disagrees. When the Bill was introduced, the AG tabled a report under section 7 of the New Zealand Bill of Rights Act 1990 in which he concludes that the Bill is inconsistent with a number of rights and freedoms contained in the Bill of Rights – the rights against retrospective penalties and double jeopardy; and the right not to be arbitrarily detained. His particular concern is a provision that will enable the Parole Board to impose conditions similar to home detention for up to 10 years following the expiry of the sentence. The AG does not agree that this power existed prior to 2007. He thinks the Bill before the House this week brings in that power for the first time. He also says that the breach of human rights is unjustifiable because there are alternative methods by which the same result could have been achieved. The Greens now say they feel they were tricked into supporting the variation from parliamentary procedure because they weren’t told in advance about the AG’s report.

The Greens could of course have asked to see a copy of the bill in advance before agreeing to grant leave for it to go through all stages.

I also suspect there was no “trick” involved. The Justice Ministry advice presumably was that this power always existed, while Crown Law disagrees (and the Attorney-General obviously concurs with Crown Law).  It is likely the AGs opinion was only known at the last minute, and that there was no deliberate holding it back.

Regardless there is a legitimate debate about whether this is a new power, being granted. And in that case, it should go to select committee to have that debate:

But whether the interpretation is right or wrong – and I haven’t had a chance to sort that out for myself yet – is not the point. This is a process question. When the Attorney-General issues a report under section 7 of the Bill of Rights, it is a signal to the House that there is an important issue to be addressed concerning the fundamental rights and freedoms of people within our borders. In New Zealand we haven’t opted for a system of judicial supremacy so our courts can’t strike down legislation that breaches our rights. Instead, we’ve trusted to the good sense and fair mindedness of our elected representatives. Our Bill of Rights asks them to be the custodians of the Bill of Rights, and a section 7 report is one of the triggers for them to take their responsibilities seriously.

The AG’s report is not the last word on the human rights implications of legislation – it is the first word. After carefully considering the matter, Parliament may disagree with the AG. It may consider that the AG has misunderstood the law; or that the limits on rights contained in the law are reasonable in light of the extent of the problem it’s designed to address. What is often lost sight of is that the Bill of Rights does not create absolute rights – it merely warns against legislation that breaches rights in a way that is unreasonable or unjustifiable.

If the system is working properly, though, what we should not be seeing is legislation being enacted in the face of a section 7 report without MPs and the public having had a proper opportunity to scrutinise it.

I concur. Personally I am one of those who thinks the law should be supported. I think child abusers do pose a different sort of risk, and post-release supervision is appropriate. In fact rather than being continued punishment, it may help save paedophiles from their own behaviour.

But that is a debate that should be held in a considered manner.

Hat Tip: Steven Price

Having a lawyer as Attorney-General

March 4th, 2009 at 10:00 am by David Farrar

An interesting interview with Chris Finlayson about his role as Attorney-General, with regards to the Bill of Rights Act:

Attorney-General Chris Finlayson says he is simply “doing his duty” by raising concerns about possible breaches of human rights by his own Government’s law and order regime.

Mr Finlayson has found that the plans to give police unfettered power to take DNA from those they arrest and the “three strike and you’re out” law both have apparent inconsistencies with the Bill of Rights.  …

But when performing the function of Attorney-General – sometimes called “the Government’s lawyer” – he said it was important he acted independently.

“The Attorney-General must not be swayed by party political considerations but must objectively come to certain conclusions.”

Absolutely. The AG is generally exempt for collective Cabinet responsibility when it comes to the performance of the legal side of his job.

He said this independence was missing during the “failure of the system” when the Electoral Finance Act was introduced by the previous Labour Government and the Attorney-General – Michael Cullen – did not report its apparent inconsistencies with the Bill of Rights section on freedom of expression.

Mr Finlayson believed this failure was “political”.

“I just thought the freedom of expression issues were so obvious that a first-year law student would be able to identify them. And history has proved that completely right.”

I of course agree, as did the NZ Law Society and the Human Rights Commission.

The Attorney-General bases his opinion on whether a proposed law would breach the Bill of Rights on advice from the Ministry of Justice or, when it it is justice-related legislation, the Crown Law Office.

In the case of the Electoral Finance Act, the Crown Law Office concluded that it was consistent with the Bill of Rights.

Mr Finlayson, a leading lawyer before becoming an MP, said he was prepared to dissent from the advice he received.

“I don’t take the view that I’m some kind of automaton and just sign off on what is given to me. I will examine the matter carefully.”

This is fascinating. A non lawyer as Attorney-General (such as Dr Cullen was) would feel compelled not to second guess the advice from officials. But Finlayson has clearly stated that if thinks the legal opinion is not up to scratch, he will substitute his own opinion.

This is, in my opinion, quite correct. The role is indeed not of an automaton. Of course one would expect the AG to reveal both his advice and the officials advice, if they differ.

Three Strikes Law may breach Bill of Rights

March 2nd, 2009 at 7:36 am by David Farrar

The Herald reports that the Attorney-General has advised that the “three strikes” bill breaches the Bill of Rights. That will be one of the factors National will grapple with in deciding whether to support it beyond select committee.

I’m not sure on this, but wouldn’t the AG have given his advice at the time of introduction or first reading? I’m wondering why it has just now been reported. Mind you, the advice is not yet available on the Ministry of Justice site.

As Attorney-General, Mr Finlayson is required to report any bill that appears inconsistent with the Bill of Rights.

His concerns relate to the inconsistencies it would lead to, such as “the imposition of a life sentence for offences that would otherwise be subject to a penalty of as little as five years”.

This is of course deliberate. The intent of the three strikes law is basically a value judgement that if you have committed a third crime that is so bad, it results in a sentence of at least five years, then you are judged likely to carry on offending indefinitely. The third strike is designed not so much to punish, but to protect the public.

The select committee hearings will be vigorous I am sure.

UPDATE: I’ve been informed that the Attorney-General’s advice was tabled when the bill was introduced – so this story is now some new info. Also the advice may not yet be on the MOJ website, but it is on the Parliament site.

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 NZ Law Society 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 Austin Forbes QC, a former President of the NZ Law Society.

Another member is Cheryl Gwyn. 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

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 Bill of Rights Act, 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.

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 Rodney Harrison delivered yesterday to the University of Waikato Law School. It is a weighty 6,500 words and its subject is the Electoral Finance Act 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.

The Electoral Finance Act threesome

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

Three articles on the Electoral Finance Act to cover today.

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

However, Electoral Commission 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 Dean Knight was on National Radio yesterday talking about the EFA and the Bill of Rights Act. 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 Crown Law 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 Crown Law 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 Katrina Shanks.

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.

Court Judgement in EFB case

June 21st, 2008 at 7:05 pm by David Farrar

John Boscawen has kindly sent me a copy of the judgement which is here as a pdf.

As I said earlier the protection o parliamentary privilege saw the challenge to the Electoral Finance Bill dismissed. The similiar 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).

John Boscawen made some comments in the earlier thread which are worth repeating here:

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.

That original Crown Law opinion was a shocker. The Law Society and Human Rights Commission made mincemeat of it. One does have to wonder how it came to be signed off.