Electoral Amendment Bill 5 February 2009 Attorney-General Electoral Amendment Bill: Consistency with the New Zealand Bill of Rights Act 1990 Our Ref: ATT395/95 1. I have reviewed the Electoral Amendment Bill for consistency with the New Zealand Bill of Rights Act 1900. 2. The Bill amends the Electoral Act 1993 and repeals the Electoral Finance Act 2007 so as to provide an interim regime for electoral regulation pending a review of electoral finance. 3. In particular, the Bill reverts to the election expense provisions and the general rules governing campaign advertising of the 1993 Act as in force prior to the 2007 Act and reenacts the provisions of the Electoral Finance Act 2007 relating to donations to political parties and candidates. The Bill also makes minor changes to the preexisting regulatory regime, notably changes to the provision for referral of offences to the Police (new ss 207O and 207P), but no issue arises in respect of these. 4. The Bill raises two broad issues in respect of a number of rights affirmed by the Bill of Rights Act: 1. 4.1 Constraints on electoral advertising and electoral donations under the Bill limit the right to freedom of expression affirmed by s 14; and 2. 4.2 The Bill provides for a number of offences for failure to comply with electionrelated administrative obligations without reasonable excuse. In placing an onus on the accused, the Bill engages the presumption of innocence affirmed by s 25(c). 5. I conclude, however, that none of these issues gives rise to an inconsistency with the Bill of Rights Act. Regulation of electoral advertising, expenditure and donations 6. The regulation of advertising and expenditure under the Bill imposes direct and indirect limits on the right of freedom of expression, as affirmed by s 14 of the Bill of Rights Act: 1. 6.1 Clause 6 of the Bill (new ss 205A and 206B) limits election expenditure during the period three months prior to polling day as follows: 1. 6.1.1 $20,000 for a candidate at a general election; 2. 6.1.2 $40,000 for a candidate at a by-election; 3. 6.1.3 $1,000,000 for a party listed for the party vote in the general election plus $20,000 for each constituency candidate for that party; and 4. 6.1.4 $20,000 for each constituency contested by a candidate in a party not listed for the party vote.
6.2 Clause 8 of the Bill (new s 221) directly regulates electoral advertising. Election advertisements in support of a candidate or party may only be published or broadcast with the authorisation of that candidate or party. 7. The regulation of donations for campaigns also imposes indirect limits on expression, as discussed further below. Clause 6 of the Bill: 1. 7.1 requires public reporting of party and candidate donations (new Subparts 3, 5 and 6); 2. 3. 7.2 limits the amount of anonymous donations (new s 207I and Subpart 4); and 4. 7.3 limits the amount of donations by persons and entities who are not resident in New Zealand and are not electors (new s 207K). 8. I note further that the provision for anonymous donations also restricts disclosure of the identity of such donors (new s 208F) but, given that such restriction is implicit to the operation of such a scheme, I do not consider that any inconsistency arises. Regulation of expression in respect of elections 9. It is necessary to consider whether these various limitations are justifiable in terms of s 5 of the Bill of Rights Act: that is, whether the restriction is rationally connected to an important objective and is proportionate to that objective.[1] 10. The broad purpose of the Bill, as of the previous enactments that it re-enacts, is to promote fairness, equality and transparency in the conduct of election campaigns through the imposition of objective and proportionate controls on electoral advertising, expenditure and related activity. [2] 11. This principle has been widely accepted as consistent with human rights standards, including by the United Nations Human Rights Committee,[3] the European Court of Human Rights[4] and the Supreme Court of Canada.[5] The United States Supreme Court has, however, rejected this principle, in keeping with the much less readily qualified character of the right of free expression in that jurisdiction.[6] Expenditure limits and regulated period 12. Applying that principle, I note that the expenditure limits proposed by the Bill permit, as evidenced by past practice under equivalent limits applicable under previous legislation,[7] the effective conduct of candidate and party election campaigns while at the same time constraining the effect of possible inequalities in resources between different parties and candidates. For that reason, I conclude that these expenditure limits are proportionate to their objective and so justifiable in terms of s 5 of the Bill of Rights Act. 13. A more difficult issue arises in respect of the application of the limits to the period three months immediately preceding polling day, as it is possible to announce an election at much less than three months' notice. It follows that expenditure by a registered party and, it appears, by an intending candidate[8] would be retroactively subject to these limits. Given the possibility of an election being announced at any time, the limits thereby have a further indirect effect of constraining expenditure outside the known preelection period.[9]
14. I note, however: 1. Absent retroactive application of expenditure limits, the limits 2. would otherwise risk circumvention if an election date was known but not yet announced; 3. There is substantial and apparently unproblematic practice under the equivalent period in previous legislation, which has been in place since at least 1956. In Peters v Clarkson, the retroactive application of the candidate expenditure limit was noted by the Court but applied without further comment.[10] 15. It follows that these provisions do not give rise to an inconsistency with the Bill of Rights Act. Restriction of electoral advertising 16. A further issue arises in respect of the restriction of electoral advertising under new s 221, which, it should be noted, applies both within and outside the regulated preelection period. 17. The point, however, is that the new s 221 allows such advertising with the permission of the candidate or party concerned. Given that, as is apparent below, the overall scheme for regulated electoral advertising operates through constraints upon and authorisation by candidates and parties, that restriction is justifiable. Regulation of donations 18. Given that support for parties and candidates is a significant and, at least arguably, the primary means by which voters and others participate in election campaigns, the regulation of donations made for electoral purposes also constitutes a limitation on expressive activity. 19. The principal regulation under the Bill requires disclosure of donations on a regular basis and strongly restricts anonymous donations. While such disclosure is recognised as a disincentive for some donors, disclosure of funding sources can legitimately be regarded as a means of promoting transparency and public trust in the electoral process,[11] while the scope for anonymous donations provides a balance between these interests. For those reasons, and given that the limit on donations of $1,000 is a relatively significant proportion of the overall expenditure limits, it follows that such regulation is justifiable. 20. The limitation of donations by non-residents who are also not electors can similarly be seen to balance the interests of such persons and entities in the electoral process, which are necessarily limited, against the confidence of electors and the appropriateness of residents and electors having the primary responsibility for election campaigns. I note further that the exclusion of non-residents does not engage any ground of discrimination under s 19(1) of the Bill of Rights Act and s 21 of the Human Rights Act 1993. Reverse onus offence provisions 21. The Bill contains a number of provisions that place a reverse onus on the accused person and thereby limit the right to the presumption of innocence affirmed by s 25(c) of the Bill of Rights Act. 1. 21.1 A candidate or party secretary is guilty of an offence where, without reasonable excuse, he/she fails to keep proper records of all donations (cll 207M, 207N);
2. 21.2 A candidate or party secretary is guilty of an offence where, without reasonable excuse, he/she does not retain all records, documents, and accounts necessary for verification of a return of donations (cll 209C, 210E); 3. 21.3 A party secretary is guilty of an offence where, without reasonable excuse, he/she fails to retain all records, documents, and accounts relating to party election expenditure (cl 205O); 4. 21.4 A party secretary, is guilty of an offence where, without reasonable excuse, he/she fails to file a return of party election expenses (cl 206N); 5. 21.5 A candidate or party secretary is guilty of an offence, where without reasonable excuse, they fail to file a return of donations (cll 209B, 210D); 6. 21.6 No person may, without reasonable excuse, disclose the name or other identifying features of any anonymous donor (cl 208F). 22. While the point is not beyond argument, there have been strong indications that placing such an onus onto the defendant is justifiable where the defendant is voluntarily involved in a regulated activity.[13] Here, candidates, parties and those involved in the donation process are voluntary participants in the electoral process, which is a regulated activity. Upon entering into an election, candidates and party secretaries are aware of the regulatory framework and are expected to act with due diligence. 23. For that reason, I conclude that no issue of inconsistency arises in relation to these provisions. 24. In accordance with Crown Law practice, this advice has been peer reviewed by Victoria Casey, Crown Counsel. Torie Cochrane, Assistant Crown Counsel, has also contributed to this advice. Yours sincerely Ben Keith Crown Counsel Footnotes 1. The application of s 5 entails an assessment of whether the restriction is rationally connected to an important objective and is proportionate to that objective: see, most recently, R v Hansen [2007] 3 NZLR 1 (SC) at [70], [123], [203]-[204] and [271]. 2. See, for example, Report of the Royal Commission on the Electoral System: Towards a Better Democracy [1986] AJHR H3, 184 & 190-191. 3. General Comment on the right to participate in public affairs, voting rights and the right of equal access to public service CCPR/C/21/Rev.1/Add.7, paras. 19 & 25. The Committee's interpretations of the Covenant are considered highly authoritative, although not binding, in relation both to the Covenant and the Bill of Rights Act: see, for example, Hemmes v Young [2005] 2 NZLR 755 (CA), 776 and Quilter v Attorney-General [1998] 1 NZLR 523 (CA), 530, 550 and 576-577.
4. Bowman v United Kingdom (1998) 26 EHRR 1, [43]; TV Vest As & Rogaland Pensjonistparti v Norway [2008] ECHR 1687, [78]. 5. See, notably, Libman v Quebec (Attorney-General) [1997] 3 SCR 569, [47]-[50] & [52] and Harper v Canada (Attorney-General), [2004] 1 SCR 827, [87]. 6. See Buckley v Valeo 424 US 1 (1974), 20-21, and McConnell v Federal Election Commission 540 US 93 (2003). It must be noted that the right to freedom of expression under the United States Constitution is expressed in unqualified terms, unlike the position under art 19 of the International Covenant on Civil and Political Rights, ss 1 and 2 of the Canadian Charter, art 10 of the European Convention and ss 14 and 5 of the Bill of Rights Act. For that reason, the United States position is not followed here. 7. Sections 76 and 98 Electoral Finance Act 2007 and the previous provision in ss 213 and 214B Electoral Act 1993 (rpld). 8. While the expenditure limits in relation to candidates are expressed in new s 205A(b)(i) to include expenses incurred in the three month period, cl 4 defines candidate, for the purpose of new Part 6A (including s 205A), only as a constituency candidate, in contrast to the inclusion of intending candidates in Parts 7 and 8. While the point is not clear, it may be suggested that, under the narrower definition, the expenditure limit applies only once formal candidacy occurs. 9. Cf Bowman, above n 4: "it may be considered necessary, in the period preceding or during an election, to place certain restrictions, of a type which would not usually be acceptable," on political expression. 10. [2007] NZAR 610, [12]. 11. See, similarly, Harper, above at [48] and [144]. 12. See s 67(8) of the Summary Proceedings Act 1956. 13. See, for example, R v Wholesale Travel Group [1991] 3 SCR 154 (Supreme Court of Canada) and AG v Malta (ECtHR, App 1664/90). The point was noted with possible approval but not decided in Hansen at [43], [66]and [227]. In addition to the general disclaimer for all documents on this website, please note the following: This advice was prepared to assist the Attorney-General to determine whether a report should be made to Parliament under s 7 of the New Zealand Bill of Rights Act 1990 in relation to the Electoral Amendment Bill. It should not be used or acted upon for any other purpose. The advice does no more than assess whether the Bill complies with the minimum guarantees contained in the New Zealand Bill of Rights Act. The release of this advice should not be taken to indicate that the Attorney-General agrees with all aspects of it, nor does its release constitute a general waiver of legal professional privilege in respect of this or any
other matter. Whilst care has been taken to ensure that this document is an accurate reproduction of the advice provided to the Attorney-General, neither the Ministry of Justice nor the Crown Law Office accepts any liability for any errors or omissions.