Tuesday, July 31, 2007

Election funding and the Bill of Rights Act

The most common criticism of the government's proposed Electoral Finance Bill is that it violates the right to freedom of expression affirmed in the Bill of Rights Act. But is this true? IMHO, no. As for why, it is worth remembering two things: firstly, that the rights affirmed in the BORA are not absolute, instead being subject to "such reasonable limits... as can be demonstrably justified in a free and democratic society". And secondly, that the right of New Zealanders to vote in free, fair, and genuine elections is itself affirmed in the BORA. The latter doesn't just mean that we get to vote - the elections must be genuine, which (in New Zealand, and everywhere else in the western world outside the USA) means preventing the rich and powerful from using their undue influence to affect the result.

So, this is about balancing rights then - something the BORA doesn't actually give us much guidance on. But it does establish a strong general case that some restrictions on donations, spending, and advertising are required by the BORA and will constitute a justifiable limit, provided they're proportionate to the aim of ensuring genuine elections.

So much for the general, what about the specific? Crown Law's advice on the consistency of the bill with the BORA is informative here. They follow a similar argument to that above (though with input from Canadian and UK cases as well as the UN rulings on the ICCPR), and reach the same broad conclusion. As for the specific clauses of the bill,

  • The limits on donations, expenditure, and the registration and reporting requirements are all found to be justified.
  • The extension of the "regulated period" to one year is considered to be "at the outer edge of acceptable limits", but is ultimately found to be consistent (in part because it is not unusual internationally).
  • The lower spending cap on third parties is justified on the basis that it is political parties, rather than third parties, who are the principal participants in an election. However, this is predicated on the restrictions not being "so severe as to preclude meaningful participation in the electoral process". I'm not sure that this condition is met - the spending cap may not be high enough to allow what I'd regard as the benchmark of "meaningful participation", the purchase of a full-page ad in every major daily newspaper.

The biggest problem however seems to be around "issue advertising". Here Crown Law argues that restrictions are justified by its use in other jurisdictions (and here) to circumvent spending limits. However, they fudge blatantly here in saying that

[as] this provision will be interpreted consistently both with the purpose of the Bill in maintaining electoral fairness and with the right to free expression under ss 6 and 14 of the Bill of Rights Act, the scope of regulation of issue advertising remains limited to that necessary for electoral purposes.
Which, while true, is a bit of a dodge. This is potentially one of the most contentious and broken bits of the bill, simply palming things off on the courts in this way simply isn't good enough. OTOH, a BORA-analysis isn't really the place for suggesting amendments. Instead, that seems to be our job.