Thursday, 27 September 2007, 11:58 am – From the President of the New Zealand Law Society, John Marshall QC
The New Zealand Law Society makes submissions on most new legislation from an independent perspective and in the public interest. It is very rare for the Society to come to the view that a bill is bad and should not proceed further. However, it has done so in the case of the Electoral Finance Bill and called for it to be withdrawn, describing it as a backward step and irredeemable.
While endorsing the purposes of the bill, the Society has submitted that it has serious defects that mean it will not achieve those purposes.
“The rules regarding registration, disclosure, spending limits and related offences are so complex, vague and uncertain as to make participation in our parliamentary democracy an arduous and perhaps even legally dangerous undertaking for ordinary New Zealanders,” the Society said in its written submission.
“These considerations are additional to the fact that an overly long restricted period, unduly low spending limits and unfair third party regime, all place an unacceptable restriction on free speech,” it submitted.
NZLS President John Marshall QC reiterated these points when the Society made an oral presentation to the Justice & Electoral Committee today (27 September).
He said people could easily find themselves breaking the law unwittingly simply by participating in debates on election issues.
By way of example, he cited clause 5(1)(iii), which essentially provides that a statement by any person, which takes a position on an election issue, is an ‘election advertisement’.
“By taking a position on an issue, a party or candidate ensures that any person wishing to take the opposite view publicly, and wanting to spend more than $5,000, will have to go through the strict process of registering as a third party and will be limited to spending $60,000. The effect will be to stifle debate on important issues at election time, which is precisely when debate should be encouraged.”
In its written submission, the Society noted that the bill seemed to be inconsistent with the New Zealand Bill of Rights Act 1990 in that it limited freedom of expression in a way that could not be justified in a free and democratic society.
The Society submitted that the committee should recommend that the bill not proceed and that the issue should be approached afresh.
“The Society is of the view that the bill should be withdrawn,” John Marshall said. “It is not capable of being patched up. The policy-makers should start again, with clear objectives, and with better regard for the right of free speech and the right to participate freely and openly in the democratic process, both of which rights are basic to our democratic ideals.
“Legislation such as this, which goes to the heart of our democratic system of government, should be broadly accepted both within Parliament and in the wider community. The controversy surrounding this bill shows that it does not have that broad acceptance.
“The Society does not want to be seen as entirely negative. It endorses the objectives in the bill. We accept that internationally there are precedents for restrictions on electoral advertising. There should be transparency as far as donations and third party activity are concerned. However, this bill does not achieve the right balance between these restrictions and requirements, and the objective of the promotion of participation by the public in parliamentary democracy,” John Marshall told the committee.