LAWFUEL – The Legal Newswire –
Members of the Press Club, I want to talk this afternoon about democracy, about freedom of political expression, and about the Electoral Finance Bill which is currently before Parliament.
This is not just a poorly written bill, not just an ill-conceived bill, and not just a bad bill, although it is certainly all of those. Most of all, this is a dangerous bill. It is dangerous for all of us as individuals, it is dangerous for our democracy, and it is dangerous for New Zealand.
We should rightly be proud of our democracy. It is a very real New Zealand achievement and we should celebrate it. A lot of other countries never made it. Plenty have tried democracy and let it slip through their fingers. Other countries never had the chance.
Next year, like many of you, I will be watching the opening ceremony of the Beijing Olympics. I want you to remember when you see the flags of almost 200 countries come marching past that only 27 of those countries are full democracies.
Only 27 countries, encompassing only 13% of the world’s population, are full democracies, with universal suffrage, with free and fair elections between competing parties, with freedom of association, and with freedom of speech. New Zealand is one of those countries, and New Zealanders are part of that 13% minority.
One of the key planks of democracy is that all citizens are free to express themselves on all political issues.
They are free to criticise the government. They are free to criticise the opposition. They are free to promote policies they like and protest against policies they abhor.
They march, they make placards, they deliver leaflets. They produce brochures, they send emails, they build websites. They take out advertisements in the paper, they call public meetings, they circulate petitions.
Two of the most powerful examples in recent years have been the debates over the foreshore and seabed, and over the smacking legislation. People had strong opinions, they were organised and they had their say, often loudly. A healthy democracy doesn’t just tolerate this – in fact, it requires it.
A quiet, obedient, and docile population; a culture of passivity and apathy; a meek acceptance of what politicians say and do – these things are not consistent with democracy.
A healthy democracy requires the active participation of citizens in public life and in public debates. Without this participation, democracy begins to wither and becomes the preserve of a small, select political elite.
Freedom of political expression has a price, however. The price is that we have to hear opinions that we don’t like, and that we don’t want to hear, from people we can’t stand. For us politicians, the price is an endless stream of criticism. Well, that’s tough.
Politics is a contest of ideas, and ideas should be publicly discussed. Ideas should be tested and ideas should be criticized.
That leads me to the Electoral Finance Bill.
Its title is misleading. This bill is not primarily about electoral finance. It is about the determining the amount, timing, and content of people’s expression on political issues.
English sportswriter Martin Johnson once said there were only three things wrong with the England cricket team – they can’t bat, they can’t bowl, and they can’t field.
In a similar vein, I think there are “only” three things wrong with the Electoral Finance Bill – the regulated election period is ludicrously long, the definition of publishing an election advertisement is ludicrously wide, and the hurdles that third parties have to jump are ludicrously high.
Length of the election period
First, the length of time during which free speech is regulated and restricted has been hugely widened.
Currently, this period begins three months prior to polling day. The bill extends the regulated period to cover the entire year in which an election is due, starting from 1 January.
So next year, when you wake up on New Year’s Day, you will find that you are in an election period. It may not feel like that. You may think you’re on holiday at the beach or at a camping ground. Politicians and elections are likely to be the furthest things from your mind.
However, this bill makes it so that from 1 January on, and for up to 11 months, you are in an election period where free speech is tightly regulated and restricted. Because this period is so long, New Zealanders could spend up to 30% of their adult lives in a period of restricted speech. That is totally unacceptable.
Definition of an election advertisement
Secondly, the definition of publishing an election advertisement has been widened enormously.
In this bill, an election advertisement includes any form of words or graphics that encourages people to vote for or against parties, or for or against candidates. That’s fine – no one would disagree with that.
But the bill also introduces a new type of election advertisement. The bill counts as an election advertisement any form of words or graphics that takes a position on a proposition with which a party or a candidate is associated.
On top of this, the definition of publishing an election advertisement covers buying advertising space in a newspaper – which you’d expect – but also includes handing out a leaflet, displaying a placard, issuing a press release, sending an email, posting on a website, and mailing a letter. The definition is so wide that it includes almost all forms of communication except for speaking to someone face to face.
I’ll give you an example of how bizarre this will make things.
The Green Party is opposed to battery farming of chickens. So next year, from 1 January, if you express a view about battery chicken farming – apart from just talking about it – you will be considered to be electioneering.
If you want to communicate your like or dislike of battery chicken farming – if you put an ad in the paper, put a photo of battery chickens on a website, put out a press release, or send an email to your friends about it, then you will be considered to be electioneering and your communication will be considered to be an election advertisement.
Then other measures click in. The bill will consider you, or the organisation you are part of, to be a “third party” – that is, you are electioneering but you aren’t a political party and you aren’t a candidate. There are lots of rules about third parties and I’ll come to those in a moment.
You don’t even have to be expressing an opinion on who should be the government. You may not even care. You might be trying to put pressure on all parties. You might be trying to put pressure on farmers. It doesn’t matter in this bill.
In fact, it is so ludicrous that if you write a letter to your grandmother saying: “Dear Gran, thanks for your omelette recipe but I don’t believe in buying battery eggs”, then that is considered under this bill to be an election advertisement.
The effect of this new definition is actually to put politicians in an incredibly privileged position in our society.
In an election year there are no restrictions on publicly discussing an issue until such a time as a party or candidate takes a position on that issue. Once a member of the “political elite” has taken a view, however, every other New Zealander is restricted in how they can advocate on that issue. In an election year, ordinary New Zealanders are relegated to being second-class citizens.
Regulation of third parties
The third major problem with the bill is this. If you are a third party – that is, if you or your organisation wants to have a say on political parties, or candidates, or their election policies, or any position they are associated with, in an election year – then this bill places so many onerous restrictions and demands on you that you’ll probably wish you had never spoken out in the first place.
If you are a very minor participant, and in the whole of the election year you don’t think you are going to spend more than $5,000 on what the bill calls election advertising, then you will have to make a statutory declaration.
You will have to declare before a Justice of the Peace or a solicitor that you are not going to spend more than $5,000, and you will have to give this declaration to anyone who runs your ads, or hands out your leaflets, or displays your placard, or hosts your website, or posts your letters.
If, on the other hand, you think you will spend more than $5,000 then you will have to register with the Chief Electoral Officer. You will have to register with an arm of the government in order to express your opinion! You will have to appoint a financial agent to be responsible for your election-related expenses, and you will probably have to appoint an auditor as well.
After the election, you will have to file a return with the Chief Electoral Officer which sets out your expenses for all forms of communication on what the bill considers electioneering.
You will also have to reveal the names and addresses of everyone who has given you a donation of $500 or more, which has even indirectly contributed to funding your election advertisements. If you don’t know who has given you a donation, and it is over $500, then you will have to hand this money over to the Chief Electoral Officer.
And you better keep a good record of how much this is all costing. Because the total amount of money you can spend in an election year, on any form of communication that touches on election policies, or any position any party or candidate is associated with, is $60,000. That would pay for one full-page ad in the New Zealand Herald and one in the Dominion Post and barely leave you with loose change.
This bill – this bill which the Government says will “help promote participation in parliamentary democracy” – says that no one, except political parties, can take out more than two full-page ads in a major newspaper over the course of an entire year about anything touching on politics.
How dare the Government propose a measure like that. Do we live in a democracy or don’t we? Are we free to express ourselves on all political issues?
In this country you have a right to have your say on Labour policy, on National policy, on Green policy, on any policy you like, and you have a right not be muzzled by the government.
Think about what would happen if the smacking debate or the debate about the foreshore and seabed occurred in an election year under the provisions of this bill. Discussion of these issues would have been restricted and debate would have been muted. And that would have suited the Government just fine.
Many of you are probably thinking that this is just too dreadful to be true. Surely, some groups of people get exemptions from these ridiculous rules.
Well, yes – there are exemptions. The media gets an exemption, as do bloggers. Organisations can directly communicate with their members, for example through newsletters.
But the biggest exemption is for MPs, who can publish whatever they like if they are doing it as an MP. That includes spending taxpayers’ money on a pledge card. If Labour puts out a pledge card in the next election, it will not count towards the Labour Party’s election spending cap.
The bill, therefore, has the effect of loosening the definition of advertising for politicians while tightening it for almost everyone else. That’s pretty much it as far as exemptions go.
Also, government departments can continue to spend unlimited amounts of taxpayers’ money publicising policies, as we’ve seen with the millions of dollars of KiwiSaver and Working for Families ads – and they can do this right up to the day of the election.
Basically, this bill is saying: don’t you worry, citizens of New Zealand – leave all the politics to politicians, the media and bloggers. We’ll tell you what to think. You can trust us.
Ladies and Gentlemen, this bill constitutes a huge threat to freedom of expression in this country.
This deeply flawed and anti-democratic bill needs to be ripped up and tossed in the bin.
The Prime Minister says there’s no need for that. She says any problems with the bill will be ironed out by the select committee, which contains representatives from all parties.
The problem is we are not talking about ironing out glitches, or correcting drafting errors, which is what select committees are good at. We are talking about a bill that is a total and utter mess. It is so heavy-handed it replaces 32 sections of the Electoral Act with 158 of its own. And we are talking about a bill that has been developed in completely the wrong way.
When it comes to changing aspects of the electoral system – which determines how parties get elected – the government of the day has a duty to act in a completely transparent, fair, and non-partisan manner. It must scrupulously avoid proposing changes to the electoral rules to favour itself.
So I think that after the bill has been ripped up, two things should happen.
First, there should be a genuine multi-party approach to reviewing the rules around electoral financing.
Any change to the laws governing elections requires widespread support from across the political spectrum. New Zealanders will not have confidence in an electoral bill rammed through by a slender majority without public support and with the backing of only the bare minimum of parties necessary to get it through Parliament.
Secondly, a review of electoral financing should work off the existing law, which is contained in the Electoral Act.
The provisions in this Act have served us well and there is no need to scrap them entirely. In support of this, I should point out that almost all the problems people point to in the 2005 election were, in fact, breaches of the existing law. The existing law caught them. The trouble is that none of those breaches were ever prosecuted.
The Government has made no case for wholesale change and, in lieu of any convincing arguments, can make only hysterical statements about the actions of the Exclusive Brethren.
Our view is that changes to the rules around electoral financing can be accommodated within the framework of the existing law.
For example, we would support a limit on third-party spending in an election period. Political parties and candidates are capped in their spending so it makes sense that third parties are as well. Organisations should not be allowed to spend unlimited sums of money trying to influence an election.
We are also prepared to see changes that make donations to parties more transparent. The fact there are no such proposals in the Electoral Finance Bill is because Labour chose not to include them. It is not due to National in any way whatsoever. We have consistently said we are open to changes in this area.
We also think there needs to be better enforcement of election law. As I just said, there were numerous breaches of the electoral law at the last election but none of these were ever prosecuted. So, rather than introduce a completely new bill, the priority, surely, is to enforce the existing law properly.
After the election, the Government promised to consider giving agencies the tools and resources they need to properly police electoral law breaches. That has not happened and it is a mystery to me why it has not.
There are some provisions in the existing law, however, that we do not think should be changed.
Among other things, we are totally opposed to further state funding of political parties. The public of New Zealand, I might add, are also opposed to further state funding.
National considers that the election period, during which free speech is regulated, should not be extended. The current election period, which is the three months before polling day, seems to me at the limit of what could be considered an election campaign. After all, we typically get only six to eight weeks notice before an election is held.
Extending the three-month period is the cause of many of the problems with the Electoral Finance Bill.
Take, for example, the definition of election advertising in the bill. In the last few weeks of an election campaign, ads that criticise or support policies associated with political parties or candidates might reasonably be considered election advertising. However, the same ads run earlier in the year may not. The bill does not distinguish between these two situations.
Electoral law should be about regulating election activity, not regulating social debates that happen to occur in election years.
What the Government has done in drafting this bill is essentially to marry together the broad Canadian definition of an election advertisement with the long election period in the United Kingdom. This cherry-picking of rules doesn’t reflect the internal logic of either the Canadian or the UK system, and has resulted in a muddled and incoherent proposal.
We need to retain a sensible election period. But even the three-month period has some problems. As I said, elections are typically announced and conducted within six to eight weeks. So it is impossible to know whether your spending at any point in time is or isn’t within the regulated election period. You only find out later on.
In my view, political parties and other organisations need to know in advance when the election is to be held so they can comply with the law. I think serious consideration should be given to making the government give three months notice of the election date. When such notice is given, the regulated election period could then begin.
National also thinks third parties should be cut some slack. Reading the bill, I get the impression the Government considers third-party participation in elections to be distasteful and only barely legal. Under sufferance, the Government can bring itself to tolerate some involvement, but only if it is regulated to within an inch of its life.
And this is a Government which says it wants a system “where everyone has the opportunity to participate” and “where every person can hear everyone else’s voice clearly and transparently”. Well, all I can say is that the proof is in the law you write, not in the words you use.
Ladies and Gentlemen, I believe you get the democracy you are prepared to stand up for.
Here in New Zealand we often take our democratic freedoms for granted. We think they will always be there. We have a Bill of Rights which is supposed to protect our right to freedom of expression. What on Earth could go wrong?
I have a different view. I believe what Thomas Jefferson said – that the price of freedom is eternal vigilance. We cannot and we must not take democratic freedoms for granted.
Because, in reality, it is not a Bill of Rights that protects our rights. It is not up to a solicitor in the Crown Law Office or an official in the Ministry of Justice. In the end, it is not up to the government at all.
The protection of rights lies with us, the citizens of New Zealand. There are times when we have to stand up for our rights, and the rights of our neighbours and friends, and indeed the rights of people we totally disagree with, or else these rights will begin to erode away.
And this, I say to you, is one of those times. Because this bill is an assault on what it means to be a New Zealander, and this bill is an abuse of the trust we have in the government to protect the institutions that make us proud to call this country home.
It is not the government’s freedom of expression that will be curtailed by this bill, but your freedom of expression, and the freedom of expression of every New Zealander who is not a politician or a newspaper editor.
We should count ourselves lucky that standing up for democracy in this country doesn’t involve marching through tear gas, or printing leaflets in a hidden cellar, or standing in front of a tank.
But little battles can be as important as big ones. And, though it is not as glamorous or as terrifying, you are just as much fighting for democracy by putting a submission on the Electoral Finance Bill.
You don’t have to agree with my analysis of what should change. You should make up your own mind and you should express it with the courage of your convictions.
That is what living in a democracy is all about.