A paranoid bill
The Dom Post’s Tracy Watkins has previously labelled the Electoral Finance Bill as based on paranoia. It’s a theme worth investigating.
I have a guest column over on Muriel Newman’s NZ Centre for Political Research. In it I note:
Even the media are not exempt from the restrictions on criticising the Government. The Minister of Justice has said that if a newspaper wishes to endorse a party, it can not do so unless it registers as a third party. The new law will restrict the traditional media exemption so that it only applies if material is written “solely for the purpose of informing, enlightening, or entertaining readers”. The use of the word “solely” means that media who launch campaigns (such as the NZ Herald campaign against the Electoral Finance Bill) may end up breaking the law and be prosecuted.
Now to be balanced, I’ll quote an e-mail from COG’s Steven Price who thinks I am reading too much into it:
Caught the end of the march today. You were warning the media that editorials would be caught under the bill. You read out the definition (“solely for the purpose of informing…”) but somehow neglected to mention the rest (“…enlightening or entertaining”). The “enlightening” bit has been added to the bill as originally drafted.
I have yet to see an editorial that didn’t plainly regard its purpose as to enlighten, even if it’s advising people how they should vote. If there is any ambiguity in the word, it will surely be resolved by a quick glance at section 6 of the Bill of Rights Act (a rights consistent meaning is to be preferred).
I mentioned in my reply to Steven that the partial quote used in my speech to the march was because I was not planning to speak and hence going off memory rather than having actual clauses to quote from in front of me.
Now while I am not going to argue law with Steven, I think the use of the word “solely” does create some problems for media, especially when the Justice Minister herself has said an editorial endorsing a party should be treated as a third party advertisement. An editorial’s purpose may be partly to enlighten, but is it solely to enlighten??
Anyway the point I want to make, is who on earth are we having to even have a debate on whether news media may be editorially restricted depending on how one interprets “solely for the purpose of ”
Let us look at the exemption in the current S221A(4) of the Electoral Act 1993:
Nothing in this section shall restrict the publication of any news or comments relating to an election in a newspaper or other periodical or in a radio or television broadcast made by a broadcaster within the meaning of section 2 of the Broadcasting Act 1989.
Now that’s a great statement. “Nothing … shall restrict”. A perfectly fine exemption. Now has there ever been any horrendous (or even non horrendous) abuse of this provision that warrants a change? Had Radio NZ or TV Three or the Otago Daily Times ever abused this provision, so that it needs changing?
Of course not. But the Electoral Finance Bill is based on paranoia. God knows what fevered scenario they are worried about, but they felt it was necessary to replace this with EFB Clause 5(2) para (c):
any editorial material, other than advertising material, in a periodical that is written by, or is selected by or with the authority of, the editor solely for the purpose of informing, enlightening, or entertaining readers
So thanks to the paranoia about some unknown media bogeyman, editors throughout NZ have to get legal advice and face some uncertainity over the limits of their freedom of speech. Is an editorial which says “Vote to keep the Government this Saturday” solely to enlighten? Is the Herald’s campaign against the EFB “solely” to inform. How much risk is there that a Judge could find that that the Herald was not only informing or enlightening but seeking to persuade. And hey the law basically says the media can not persuade.in election year.
Now Steven is right, that a sensible Judge will interpret the law liberally. But we shouldn’t need to rely on that. The media exemption in the current bill had never been abused, and even if one wanted tighter wording, the insistence on “solely” is very clearly a deliberate act to minimise the extent of the media exemption.
It was the same paranoia which led to the ridicolous statutory declaration regime being included in the original bill. The same paranoia which led to the original ban on any communication which expressed a position on a proposition associated with a party.
And this is just one more reason why the EFB is bad law.