9 July 2008

Nine to Noon: the Electoral Finance Act, the Bill of Rights and the Attorney-General

> NinetoNoon: "Legal" [or podcast] This morning I was talking with Kathryn Ryan on Nine to Noon about the Electoral Finance Act, the Bill of Rights and the role of the Attorney-General. The audio links are above. Below I've set out some of the things we discussed, in an expanded and referenced form. Background Recently there has been some litigation about Electoral Finance Act, including various decisions made by Electoral Commission: - A ruling from the High Court that the Electoral Commission was wrong to take the view the EPMU wasn't a "person" and therefore was not prohibited from being a third party because of its alleged involvement "in the administration of the affairs of a party".[1] - An unsuccessful challenge from the National Party to the Electoral Commission's decision not to refer an illegal leaflet (a Labour Party "We're making a difference" pamphlet, without the required promoter statement) under the insignificant provision to its reporting duty (ie, the "offence is so inconsequential that there's no public interest in reporting to the New Zealand Police").[2] However, I want to concentrate on one particular legal challenge that was rejected a couple of weeks again that raises broader questions about the Bill of Rights and the role of the Attorney-General, Boscawen and others v Attorney-General.[3] What was the case about? Late last year, a number of people (John Boscawen, Garth McVicar from Sensible Sentencing, (the late) Graham Stairmand from Greypower, Rodney Hide from ACT) sued – by way of judicial review – the Attorney-General arguing that he breached his duty to advise Parliament that the (then) Electoral Finance Bill was inconsistent with the Bill of Rights. Based on advice from the Crown Law Office, the Attorney-General did not issue a (so-called) section 7 report on the Bill, taking the view that the Bill was not inconsistent with the Bill of Rights. Even though the EFB prima facie restricted people's freedom of expression protected under section 14 of the Bill of Rights, the Crown Law Office advice was that any restrictions were justified. However, the did note that this conclusion was was "finely balanced". I'll come back to that advice and that question later. What is a section 7 report? The obligation to issue a section 7 report comes from section 7 of the Bill of Rights:
s 7 Attorney-General to report to Parliament where Bill appears to be inconsistent with Bill of Rights Where any Bill is introduced into the House of Representatives, the Attorney-General shall,— (a) In the case of a Government Bill, on the introduction of that Bill; or (b) In any other case, as soon as practicable after the introduction of the Bill,— bring to the attention of the House of Representatives any provision in the Bill that appears to be inconsistent with any of the rights and freedoms contained in this Bill of Rights.

Basically it requires the Attorney-General to "bring to the attention of the House" any Bill or provision that "appears to be inconsistent with any of the rights and freedoms contained in this Bill of Rights" when in it introduced to Parliament. What's the rationale for this reporting role? This obligation goes back to the moderate role intended for the bill of rights. Unlike Canada and the United States, our courts are not entitled to strike down legislation that is inconsistent with the Bill of Rights. Instead, we have a "parliamentary bill of rights" where processes are put in place to ensure that the Executive and Parliament pay attention to the Bill of Rights when designing legislation. As Sir Geoffrey Palmer once said, the Bill of Rights was designed to be "a set of navigation lights for the whole process of government to observe".[4] The Attorney-General's obligation to draw Parliament's attention to the legislation which appears to breach the Bill of Rights is the cornerstone of this model. The obligation to "bring to the attention of the House" any inconsistencies means theoretically Parliament consciously endorses and mandates any limitations placed on rights in the pursuit of countervailing government imperatives. How does the Attorney-General bring it to the attention of the House? The reporting role has now been formalised in Standing Orders.[5] The Attorney-General tables a formal report in the House setting out a detailed explanation of why he or she has formed the view that the legislation is inconsistent with the Bill of Rights. How common is a section 7 report? By my count, 20 government Bills and 23 non-government Bills have been indentified by the AG as being inconsistent with the Bill of Rights. (As an aside, usually Bill of Rights implications of government bills are teased out through the internal governmental processes. In contrast, Member's Bill and Local or Private Bill are sometimes a bit more raw!) Who actually assesses whether a bill complies with the Bill of Rights? The Ministry of Justice advise the Attorney-General on the consistency of all Bills with the Bill of Rights Act. In the case of bills developed by the Ministry of Justice, the Crown Law Office takes over this responsibility. All advice since 2003 has been made publicly available on the Ministry of Justice website.[6]

However, the ultimate responsibility lies with the Attorney to determine and assess compliance. Whether there is any independent judgement is not something we know but would be rare. It is presumed, however, that the Attorney-General acts in their independent capacity – separate from the political and Cabinet process – when undertaking this role. What are they looking for? What does "appears to be inconsistent with any of the rights and freedoms contained in this Bill of Rights" mean? In practice, the Attorney-General only reports when they consider the bill actually breaches the Bill of Rights. By that we mean:(a) the bill prima facie limits one of the rights contained in the Bill of Right, and(b) the bill is not justified as a reasonable limit under section 5 of the 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".) All the action is in section 5, assessing whether the Bill is a reasonable limit on a right. The Attorney-General and courts (as interpreters of the Bill of Rights) have developed a relatively sophisticated "proportionality" test or calculus for undertaking this assessment. In simple terms, is the bill necessary, suitable and appropriate? More formally, questions like: - How important or significant is the government's objective behind the bill? - Is the bill rationally connected to that objective? - How much does the bill limit the right? Does it limit it more than is reasonably necessary to achieve that objective? The key thing to realise is that assessment is very much a complex value judgement, for which there may not be an obvious, "correct" answer. Its an evaluation that is capable of reasoned disagreement! So, obviously the EFB restricts people's right to publish advertisements and therefore limits right to the freedom of expression. However, when CLO and the AG assessed the EFB, they took into account of the fact that spending limits and transparency are designed to ensure fair elections, promote participation in democracy, etc – in themselves important governmental imperatives. (Arguably, arising also from or implied from the right to "vote in genuine periodic elections" protected by section 12 of the Bill of Rights.) Their value judgement was that the provisions were generally proportionate and justified, recognising that, if this question arose in court, the courts usually defer to the political value judgements on this point, especially about whether or not there are other less rights-infringing means of achieving the same outcome. That's the assessment that was the target of the plaintiffs' claim; that conclusion meant the Attorney-General didn't report any Bill of Rights inconsistencies to Parliament. Now, it must be remembered that, at that stage, when the Bill was assessed and proceedings were filed, we were talking about the First Reading of the EFB – the more egregious version. Very few commentators and scholars thought the initial value judgement was particularly robust. However, many of the restrictions were watered down by the Select Committee and the Mark II version of the Electoral Finance Act that was actually passed did not limit the freedom of expression to the same extent. Arguably, questions of consistency with the Bill of Rights were in the zone where reasonable people could differ. The plaintiffs originally tried to get their claim heard under urgency in order that it could be ruled on prior to the Select Committee report and in order that it be capable of influencing the parliamentary process. But that was urgency application was rejected. As a result, the plaintiffs' claim morphed somewhat before it was heard in May this year: (a) they were forced to argue that the Attorney-General had a continuing duty to report inconsistencies with the Bill of Rights (which made their argument harder); and (b) they sought a "declaration of inconsistency" in relation to the EFA that was passed by Parliament. Declarations of inconsistency are a relatively controversial and uncertain remedy. It basically asks the court to give an opinion that legislation is inconsistent with the Bill of Rights, even though – as a matter of law – the court has no power to strike down the legislation. So what did the Court say about their claim? Actually, nothing on the merits of the claim or the consistency of the EFB with the Bill of Rights. There was a bigger hurdle the plaintiffs needed to get over first: parliamentary privilege. The Attorney-General applied to strike out the claim pre-emptively on the basis that that reviewing the actions or non-action of the Attorney-General in the Parliament breached article 9 of the Bill of Rights 1688 (UK):[7]

"Freedom of speech—That the freedome of speech and debates or proceedings in Parlyament ought not to be impeached or questioned in any court or place out of Parlyament."

That is, the long established principle of the non-interference by the courts in parliamentary proceedings. It's the same freedom the allows MPs to be immune for things that they say in speeches in Parliament.

The plaintiffs basically argued that privilege should be read more narrowly and didn't apply to the Attorney-General's reporting duty; in other words, their claim did not touch the internal proceedings of Parliament. And, more importantly, the whole rationale of the parliamentary Bill of Rights relies on the Attorney-General giving accurate advice on compliance or non-compliance with the Bill of Rights.

The Court agreed with the Attorney-General and struck out the claim. In a nut-shell the Court ruled that action of the Attorney-General was a parliamentary function and therefore was cloaked by parliamentary privilege. Therefore it could not be challenged in the courts.

That is consistent with the couple of other cases that have considered the point. Not many of us were that surprised by that part of the ruling. And, if the case had been successful and the Bill of Rights scrutinisation process was opened up to supervision by the courts, that may have involved a shift in our constitutional balance. If you think of our constitutional checks and balances in terms of a continuum. At the one end, we have political constitutionalism, where political actors are principally responsible for ensuring compliance with constitutional norms and human rights values. At the other end, we have legal constitutionalism where the courts are primarily responsible for this task. Presently, we have a mixture of both types of checks and balances in our system. But if the case succeeded, it would have moved us closer to the legal constitutionalism end of the continuum, where unelected courts have greater power and authority over these matters.

It's also interesting to see the Court also struck out the plaintiffs request for declarations of inconsistency. Not on the basis that a declaration would breach parliamentary privilege but because of uncertainty about whether such relief is available and a question about whether the . I was a little surprised by this one because this part of the challenge appeared to have some merit and wasn't complicated by the parliamentary privilege point.

Where does that leave the plaintiffs? We're not sure if there will be an appeal; the appeal period is still running. A challenge like this that was pushing the boundaries a bit was always going to be difficult. And might have a better chance of success the higher up the judicial system it goes. If the decision is not appealed, the question of the Bill of Rights might arise in litigation or prosecutions under the EFA – but more in an indirect way.

REFERENCES: [1] Kirk v Electoral Commission (CIV 2008-485-756, 21 May 2008). [2] Kirk v The Electoral Commission (CIV 2008-485-805, 9 June 2008). [3] Boscawen v Attorney-General (CIV 2007-485-2418 20 June 2008). [4] G Palmer, "Introduction" in A Bill of Rights for New Zealand – A White Paper (Government Printer, Wellington, 1985) 6. [5] Standing Order 266. [6] Ministry of Justice, "Advice provided by the Ministry of Justice and the Crown Law Office to the Attorney-General on the consistency of Bills with the Bill of Rights Act 1990" [7] Applying in New Zealand through section 3(1) of the Imperial Laws Application Act 1988.

OTHER RESOURCES: - Andrew Butler and Petra Butler, The New Zealand Bill of Rights Act: a commentary (LexisNexis, Wellington, 2005) Chapter 8, "Attorney-General's Duty to Report to Parliament") - Paul Rishworth et al, The Zealand Bill of Rights (Oxford University Press, Oxford, 2003), Chapter 6, "The Attorney-General's Reporting Role" - Claudia Geiringer, "The Dead Hand of the Bill of Rights?" (2007) 11 Otago Law Review 389

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Course Outline

Lord Justice Lawton in Maxwell v Department of Trade and Industry [1974] 2 All ER 122 said:

"From time to time ... lawyers and judges have tried to define what constitutes fairness. Like defining an elephant, it is not easy to do, although fairness in practice has the elephantine quality of being easy to recognise. As a result of these efforts a word in common usage has acquired the trappings of legalism: 'acting fairly' has become 'acting in accordance with the rules of natural justice', and on occasion has been dressed up with Latin tags. This phrase in my opinion serves no useful purpose and in recent years it has encouraged lawyers to try to put those who hold inquiries into legal straitjackets.... For the purposes of my judgment I intend to ask myself this simple question: did the [decision-maker] act fairly towards the plaintiff?"

This course examines the elephantine concept of fairness in the law, along with other contemporary legal issues.

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