Electoral (Finance Reform and Advance Voting) Amendment Bill 19 April 2010 ATTORNEY-GENERAL Electoral (Finance Reform and Advance Voting) Amendment Bill (PCO 14213/9.0): Consistency with the New Zealand Bill of Rights Act 1990 Our Ref: ATT395/102 1. I have reviewed this Bill for consistency with the New Zealand Bill of Rights Act 1900. 2. The Bill amends the Electoral Act 1993 to reform certain aspects of the regulation of electoral advertising and electoral expenditure and also, in cl 6, amends the scheme for special votes. The regulation of advertising and expenditure under the Bill gives rise to questions in respect of the freedom of expression affirmed by s 14 of the Bill of Rights Act. There is also a narrower issue of the presumption of innocence affirmed by s 25(c) in respect of two offence provisions. 3. I conclude, however, that these limitations are justifiable in terms of s 5 of the Bill of Rights Act and that the Bill therefore gives rise to no apparent inconsistency with that Act. Restrictions on free expression under the Bill 4. The provisions of the Bill relevant to the right of free expression are as follows: 4.1 New s 3A (cl 5) expands the scope of the definition of advertisement to include all media, rather than only print and broadcast media; 4.2 New s 3B (cl 5) alters the definition of the regulated period, within which advertising and expenditure restrictions apply, so that it applies for the shorter of either three months from polling day or from the date of the announcement of the election to polling day and so cannot, as at present, apply retroactively; [1] 4.3 Clause 7 provides for the publication of election-related advertisements by persons and bodies other than parties and candidates, provided that: 4.3.1 Any advertisement that encourages or persuades voters to vote for a party or candidate must be authorised by a party or candidate, and is then accounted for under the party or candidate spending limit (new s 204H-204I); 4.3.2 Any such person or body that, whether individually or in combination with others, engages in expenditure of more than $12,000 must register with the Electoral Commission (new ss 204B- 204C and 204L-204Y); and 4.3.3 Such advertisements must give the name and address of the person or body (new s 204G);
4.4 New s 204J (cl 7) provides for the Electoral Commission to advise candidates, parties and other persons or bodies as to whether an advertisement falls within the regulatory scheme; 4.5 Clause 8 introduces more detailed provision for the apportionment of joint advertising expenditure between candidates and parties; 4.6 Clauses 9, 11 and 17-18 specify that instances of apparent offending need not be referred to Police where the offending is so inconsequential that referral would not serve the public interest; 4.7 Clauses 13-16 and 19 introduce a revised scheme for the regulation and reporting of donations, including donations made by associated corporate entities, and also effectively reenacts the current prohibition on overseas donations of more than $1,000; and 4.8 Clause 25 provides for the inflation adjustment of the limits for candidate and party expenditure by way of Order in Council. Regulation of expression in respect of elections 5. The Bill thus restricts free expression in relation to election campaigns in both direct and indirect ways: 5.1 Advertising by and on behalf of candidates and parties is subject to spending limits and certain regulatory requirements; 5.2 Advertising by persons and bodies other than candidates and parties may not, without authorisation, advocate directly for a given candidate or party and is also subject to certain regulatory requirements; and 5.3 Donations made in support of election campaigns are subject to restriction, reporting and other regulatory requirements. As campaign donations are the principal means by which person and bodies other than candidates and parties may advocate for a candidate or party, these requirements do constrain this avenue for expression. 6. 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. [2] 7. The stated intent of the Bill is to ensure greater certainty and transparency in the conduct of the electoral process and therefore support public confidence in the outcome of parliamentary elections. The explanatory note to the Bill also records that it reflects areas of broad consensus reached through consultation among all current parliamentary parties and with the public. [3] 8. The limitations provided by the Bill can be seen to be seen to serve two broad principles: [4] 8.1 Electoral advertising should, for reasons of equity, be subject to expenditure limits; and 8.2 Electoral activity, including advertising by persons and bodies other than candidates and parties and the making of political donations, should take place in a robustly transparent way.
9. These principles have been widely accepted as consistent with human rights standards, including by the United Nations Human Rights Committee, [5] the European Court of Human Rights [6] and the Supreme Court of Canada. [7] The United States Supreme Court has, however, rejected the first principle, in keeping with the much less readily qualified character of the right of free expression in that jurisdiction, [8] although it has supported the second. [9] Analysis 10. The application of overall limits on expenditure by and on behalf of parties and candidates serve the objective of promoting equity between candidates and parties. The limits follow those in place for several previous elections and, in that respect, appear sufficiently high to allow parties and candidates meaningful scope for electoral promotion. 11. Similarly, the broad restriction of advertising by persons and bodies other than parties and candidates directly in support of parties and candidates, unless authorised, is, although a significant restriction, a necessary corollary of the candidate and party expenditure limits. It would not be possible to regulate campaign expenditure by parties and candidates if that regulation could be circumvented by advertising by others. 12. The risk of uncertainty, and of attendant chilling of expression, in respect of both restrictions is also mitigated to some degree by the proposed provision of advice by the Electoral Commission and by the reformed definition of the regulated period. 13. On that basis, I conclude that these restrictions are justifiable in terms of s 5. 14. Lastly, the imposition of regulatory requirements on all advertising and the reporting of donations, while both potentially a disincentive for such activity, can be seen as reasonable measures to promote transparency and public trust. [10] The effective reenactment of the $1,000 limit on overseas donations other than by persons who are citizens or registered voters can, similarly, be seen to support public confidence in the electoral system. [11] 15. It follows that no apparent inconsistency arises. Reverse onus offence provisions 16. The Bill contains two offence provisions that place a reverse onus on the accused person [12] and thereby limit the right to the presumption of innocence affirmed by s 25(c) of the Bill of Rights Act: 16.1 New s 204F(3) (cl 7) provides an offence of failing, without reasonable excuse, to take all reasonable steps to retain records of electoral expenditure; and 16.2 New subs 210D(1) (cl 21) provides an offence of failing, without reasonable excuse, to lodge certain donation returns. 17. 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, those affected are aware of the regulatory framework and are expected to act with due diligence. 18. For that reason, I conclude that no issue of inconsistency arises in relation to these provisions. 19. In accordance with Crown Law practice, this advice has been peer reviewed by Jane Foster, Associate Crown Counsel. Yours sincerely Ben Keith Crown Counsel Footnotes: 1. Electoral Act 1993, s 205(d). 2. 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]. 3. Explanatory note, 1. 4. See, comparably, Report of the Royal Commission on the Electoral System: Towards a Better Democracy [1986] AJHR H3, 184 & 190-191. 5. 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. 6. Bowman v United Kingdom (1998) 26 EHRR 1, [43]; TV Vest As & Rogaland Pensjonistparti v Norway (2009) 48 EHRR 51, [78]. 7. 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]. 8. See, for example, Buckley v Valeo 424 US 1 (1974), 20-21, and, most recently, Citizens United v. Federal Election Commission, 558 U.S. (2010). 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, and also noting that, particularly, Citizens United is a strongly polarised decision of 5 members of the 9-member court, the United States position is not followed here. 9. See Buckley, above n 8, 25-26 (avoidance of corrupt influence a permissible objective). 10. See, similarly, Harper, above n 7, at [48] and [144]. 11. Clause 16 and s 207K of the Electoral Act 1993. Such restrictions are readily upheld: see, for example, Harper v Canada (Attorney-General) (2002) 22 DLR (4th) 275, [193] & [289] (British Columbia Court of Appeal; reversed, but not on this point, by Harper,
above n 7) and Citizens United, above n 8, 46-47. 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. 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 (Finance Reform and Advance Voting) 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.