The Bill of Rights

One area of debate about the Anti-Free Speech Bil is whether or not it is consistent with the Bill of Rights. Section 14 of the Bill of rights (henceforth refered to as the BoR) states:
Everyone has the right to freedom of expression, including the freedom to seek, recieve, and impart information and opinions in any kind of form
The Anti-Free Speech Bill clearly is inconssitent with this section. However, section 14 of the BoR is not absolute, and section 5 states:
Subject to section 4 of this Bill of Rights, the rights and freedoms contained in this Bill of Rights may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

Some have argued, including the Auditor-General, that Section 5 makes to Anti-Free Speech Bill consistent with the BoR. In my opinion they are wrong.

There are several areas where the Anti-Free Speech Bill is inconsistent with section 14 of the BoR, namely the one year regulated period, and the $60 000 limit ($5 000 if one person of your group is under 18) on criticism of the government during that regulated period. The issue is whether these are justified by section 5. According to a literal interpretation of section 5 the right to freedom of expression is subject to “ reasonable limits” that can be “demonstrably justified in a free and democratic society”. The limits have to reasonable, not draconian, as the limits set out in the bill are. Also the need for them needs to be demonstrably justified, so if they are justified on the basis of the rich buying elections, there needs to be demonstrations of this happening. According to point 9 of the Auditor-General’s legal opinion the restriction needs to be “proportionate to that objective” (“that objective” refering to the objectives of the bill, in this case preventing the undue influence of wealth”). The $60 000 is not proportionate, because the $60 000 limit is excessively low, and wealthy people could be prevented from buying electionsby a higher limit of $250 000. Same with the one year regulated period, which is excessively long. Also, remember that the $60 000 is not adjusted for inflation, so it will be lower in future years.

Lets now take a look at the Auditor General’s excuses. In his point 24 he judges the very long 12 month period as not inconsistent with the BoR on the grounds that in the UK they have a one year period of regulated advertising, and points out there has been no court challenge to the one year period in the UK. What the Auditor-General ignores is not only the fact that the UK has a longer parliamentary term (3 years in New Zealand versus 5 years in the UK) so thus a greater rpoportion of the time free speech is regulated, but the fact that in the UK third parties need to register if they plan to spend more than 10 000 pounds (around NZ$26 500), but are allowed to spend as much money as they want in that 12 month regulated period, compared to the $60 000 limit in New zealand ($5 000 if you have one 17 year old in your group), and requirement to register if you plan to spend more than $5 000, and even if you don’t plan to spend $5 000 you must make a statutory declaration you won’t spend $5 000). Sorry Auditor-General, but the UK situation has little relevance to the New Zealand one. At least you did concede in point 25 that the one year limit was at the border of what was allowed under the BoR.

The Auditor-General also beleives that the $60 000 limit is not inconsistent with the BoR. The Auditor-General uses the Harper v Canada (Attorney-General) as a justification. What the Auditor-General ignores is the fact that the Harper v Canada case was in response to a law (the Canada Elections Act) which part of a wider reform of electoral laws, not limited largely to attacking free speech (like this Bill is). Greenjacket on Kiwiblog writes “Unfortunately, in Harper the judgement of the Canadian supreme Court was that while there was a clear suppression of free speech, this was balanced by the need to have ‘fairness’ in an election campaign, and this was achieved by lavish State funding of political parties and draconian limits on political donations (no donations from Unions for example) – the reason for this is the Canadian fear that big US monied interests or pressure groups such as the NRA will use Canada as a political battleground for US politics. However, in the New Zealand bill there are none of the carefully constructed balances that exist in the Canadian case – all we have is the suppression of political expression. So the references to Harper in the AG’s justification that this bill doesn’t vioate BORA is total nonsense.” Also unfortunate for those who advocate section 5 allows the Anti-Free Speech Bill, is that section 14 of the BoR explicitly allows for freedom of expression “in any kind or form”. Section 14 reads:
Everyone has the right to freedom of expression, including the freedom to seek, recieve, and impart information and opinions in any kind of form
Note that “any kind of form” part. I interpret this to mean including a form that involves spending more than $60 000 dolars in one year. The Canadian Charter of Rights and Freedoms (their BoR) provisions on freeedom of expression are weaker because they don’t involve the “any kind of form” part. My legal opinions in this area are consistent with those of the US Supreme Court in its Buckley v Valeo descison, which ruled that limiting the amounts of money candidates or third parties can spend in elections violate the right to free speech contained in the first ammendment of the US Constitution.

Despite my disagreement, the Auditor-general’s opinion on the consistency of the Anti-Free Speech Bill is worth a read for those interested in legal matters. The opinions stated above are purely my opinions, and not those of any lawyer, and it is true that I have no legal training or experience. However, I request that any one who disagrees with the opinions above attack the arguement, not the person.

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