Wednesday, August 03, 2022

A new standard for BORA consistency?

Golriz Ghahraman's Electoral (Strengthening Democracy) Amendment Bill will probably face its first reading today. And three months after it was introduced - pissing on the "as soon as practicable" requirement of Standing Order 269 - it has received a section 7 report from Attorney-General David Parker stating that its proposed donation cap is (potentially) inconsistent with the Bill of Rights Act.

I say "potentially" above because Parker doesn't actually find that the bill is inconsistent. Instead, he makes the report because while

a donation cap is certainly capable of being a justified limit on the s 14 right [to freedom of expression], but I have insufficient policy information at present to conclude that the proposed cap is such a justified limit.
To which the natural question is "did he ask"?

The fundamental problem here is that, being a member's bill, there isn't a pile of background policy documentation analysing the choices made to demonstrate that the limit is proportionate to the limitation of the right. In the absence of such information, Parker has taken a conservative approach (as used by the Court of Appeal in the voting age case, and by Parker recently over the Rotorua District Council (Representation Arrangements) Bill) that the absence of justification means a provision cannot be considered justified. I welcome that approach - we should be cautious about limiting human rights and demand that limitations be properly justified. And I look forward to it being similarly applied to government bills, Labour member's bills, and existing archaic law.

At the same time, we need to recognise that this imposes a greater burden on member's bills than on government ones. The easiest solution of course is to amend Standing Orders to allow sponsors of member's bills to make submissions to the Attorney-General on justification before a section 7 report is issued. This should prevent the government using this structural unfairness to unfairly target bills.