In a comment elsewhere, I ventilated some more of my views on the EFA and the CLO advice. I thought I'd repost them here for general consumption:
If I can expand on my rather bald statement that people are discussing.
A number of people think CLO just screwed up the value judgement.
Personally, I take issue with the advice on a different basis. I think they applied erroneous methodology (albeit methodology which I understand they routinely apply) - although I’m not sure other scholars necessarily agree with my criticism.
My concern is this statement in their advice:
In reaching my conclusion I have taken into account that the regulation of the electoral system ultimately depends upon political judgments and is an area in which a wide margin of appreciation is afforded to Parliament.
While that is undoubtedly correct, I’m not convinced it should be applied, on an ex ante basis, to advice feeding into that process where those political judgements are to made. Yes, the courts will respect and defer to the judgements made by politicians, but that respect needs to be earned. If politicians grapple with the balancing process required in the judgement, then the courts will defer to them and accord their judgement a reasonable degree of latitude, especially when its a matter on which there is not one “correct” solution or answer (and that means the judgement of the Human Rights Commission is not necessarily any better than CLO’s, the AG’s, the Nats’ or yours or mine…)
The risk of incorporating “off the shelf” deference into the vetting process is that it gives the politicians the impression that the legislation is fine and they need not grapple with the Bill of Rights implications. That’s not the case in my view.
We saw this in some respects early on when the CLO advice was trotted out to summarily repel arguments about the Bill of Rights. However, I think we also saw - later on - more genuine attempts on behalf of politicians on both sides of the House to come to terms with the balancing process and to grapple with where the line should be drawn. Thankfully the initial comfort given by the CLO opinion did not taint the entire process. And, in many respects, the debate about the EFB was probably the most sophisticated and intense debate about its Bill of Rights implications. Ultimately, a success, rather than the failure of the Bill of Rights.
One way I’ve been thinking about the methodological questions is in terms of traffic lights. That is, I wonder if the role of the MoJ/CLO and AG is to vet the legislation according to 3 categories:
1. Green light: legislation which clearly does not raise any Bill of Rights implications, such as where the measure is clearly justifiable.
2. Orange light: legislation which has Bill of Rights implications but is in a zone where its justifiability is finely balanced and significant political evaluation of the proportionality of the measure to the rights breaches is needed. If this is done, then the courts are likely to defer to and accept these judgements.
3. Red light: legislation which raises serious Bill of Rights implications which are so inconsistent that they are not capable of being justified.
I thought the EFB(Mk I) was either in the orange or red light zone, probably the latter.
But I’m happy to go on record in saying that I think the EFA (Mk II), as passed, fell very much in the orange light category. There are strong public objectives being achieved by the legislation. While the legislation of course places limits on rights, these within the zone of justifiability. The legislation is not quite as I might have drafted it but the measures are within the discretionary area of judgement such that its the legislation is not inconsistent with the Bill of Rights.
Of course, there are still some quirks and anomalies in the legislation we’re still working through in the “shake down period” (nothing new when dealing with new legislation). But these will be resolved to give some certainty. The legislation will be interpreted benevolently to give effect the purpose of the Act and, as much as possible, ensuring compliance with rights. The ludicrous hypothetical interpretations that people have been dreaming up won’t result - consistent with standard interpretative practice, the EC and the courts will strive to ensure they don’t result!
In any event, the culture of triviality where people are dobbing in each other for the most minor of breaches shouldn’t distract from the fact that, at its heart, the legislation has a sound, pressing and substantial foundation. It would be nice to continue to debate that philosphical foundation, rather than being distracted by side-shows about whether balloons or tattoos need promoter statements…