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Free speech under threat
First published in the Dominion Post, 27 November 2007
The Electoral Finance Bill 2007 proposes to regulate political advocacy by private citizens during election years.
While the Justice and Electoral Committee has endeavoured to ameliorate its worst effects, a simple example illustrates that its overreaching effects have not been solved by the Select Committee: from 1 January 2008, a person who stands on a soap-box on a street corner making statements that appear to encourage passers-by to vote for a particular party will commit a statutory offence unless that person is authorised in writing by the financial agent of the relevant party. The same offence would be committed by writing a letter or email to a friend. That the Bill remains so deeply flawed is unsurprising. In its submissions to the Select Committee, the Law Society advised that the Bill was so defective and incoherent as to be "irredeemable." Consistently with that assessment, the Select Committee's proposals have not addressed many of the Bill's fundamental flaws and, in our view, the Bill remains inconsistent with the New Zealand Bill of Rights Act 1990.
The Bill has two principal consequences for private citizens during election years. First, the Bill makes the exercise of the right to free speech conditional on compliance with a complex regulatory regime, the effect of which depends on the nature of the speech in question and the amount of expense incurred. Secondly, the Bill imposes limits on how much expense citizens may incur when exercising their right to free speech.
Many of the concepts in the Bill are defined in very broad terms, which gives rise to considerable ambiguity and, as we explain below, creates some very surprising consequences.
First, clause 55 provides that a "promoter" must not "publish" an "election advertisement" that "appears to encourage or persuade" voters to vote for a party or candidate unless the "election advertisement" is both authorised in writing by the financial agent of that party or candidate and sets out the name and address of the promoter. Clause 4 relevantly defines a "promoter" to mean a "person on whose initiative an election advertisement is published". Under clause 4, "publish" means, among other things, to display, hand out, send to any member of the public by any means, or bring to the notice of the public in any other manner. An "election advertisement" means "any form of word or graphics" that can be reasonably regarded as, among other things, "encouraging or persuading voters to vote, or not vote, for a type of party or for a type of candidate that is described or indicated by reference to views, positions or policies that are or are not held, taken, or pursued (whether or not the name of a party or the name of the candidate is stated)".
Accordingly, the following types of personal interactions would give rise to the offence of committing an "illegal practice" under clause 55 if they were undertaken without first having received written authorisation from one of the political parties:
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Sending an email or writing a letter to friend that appears to encourage your friend to vote for a party.
- Standing on a soap box on a street corner making statements to passers-by that appear to encourage them to vote for a party.
Secondly, the Bill continues to capture a great deal of issue advocacy and public debate. Given the width of the definition of "election advertisement", the following types of advocacy would constitute "election advertisements":
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A person who makes a sign that says "change the government" or makes that statement while standing on a street corner.
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A person who writes a letter urging people to cast their votes against politicians who voted in favour of a particular enactment.
- A lobby group that publishes a ranking of the registered parties in terms of their policies on, say, environmental protection or fiscal responsibility.
The area of greatest ambiguity is whether strong criticism of a politician's performance or policies can be "reasonably regarded" as persuading voters not to vote for a politician. In an electoral context, it is hard to envisage how a statement that, for example, a candidate's policies are misguided could not be reasonably regarded as persuading voters against voting for that candidate. As one of the Justices of the United States Supreme Court asked rhetorically in a recent judgment, "Does attacking the king's position attack the king?" In that sense, the line demarcating regulated speech and unregulated speech is vague.
Thirdly, it is not possible to register as a "third party" after the issuing of the writ for the general election. This gap led the Law Society to conclude that, "as of writ day in an election year any person not registered as a third party is effectively silenced." For example, if a political party trenchantly criticised a church, employee lobby group, business association, or community group or proposed policies prejudicial to their interests after the issuing of an election writ, those groups would then be unable to register. Without registering, the group would be unable to engage in a full counter-campaign to put its perspective to voters.
In addition to these specific flaws, we are also concerned that the Bill will tend to have a "chilling effect" on the willingness of citizens to participate in political discourse in an election year. Faced with arbitrary and complex rules, some citizens may understandably prefer not to engage in political advocacy rather than incur the risk and expense of testing their interpretations of the law in court proceedings.
In our view, it is necessary to return to first principles. The freedom to express political ideas, criticise the Government, and advocate change is a basic principle of liberal democratic societies. This reflects two related ideas: first, citizens do not require the Government's permission to speak their minds, and, secondly, "the concept of free and uninhibited speech permeates all truly democratic societies and institutions". Section 14 of the New Zealand Bill of Rights Act 1990 affirms the right to "freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form". Under section 5, this right may be "subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society". The sponsors of the Bill have not provided cogent evidence of the harms said to be caused by "third party" advocacy and we therefore consider the Bill's interference with political expression cannot be justified in a free and democratic society, and is inconsistent with the rights protected by the New Zealand Bill of Rights Act 1990.
