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Electoral Finance Bill

26 June 2007

Attorney-General

Electoral Finance Bill: Consistency with the New Zealand Bill of Rights Act 1990
Our Ref: ATT395/15

I have reviewed the Electoral Finance Bill ("the Bill") for consistency with the New Zealand Bill of Rights Act 1990 ("the Bill of Rights Act").

The Bill raises issues in respect of a number of rights affirmed by the Bill of Rights Act:

2.1 The various constraints on electoral advertising and related activity limit the right to freedom of expression affirmed by s 14;

2.2 The Bill provides for offences that in a snap election could result in conduct becoming unlawful in circumstances where it lawful at the time it occurred. This raises an issue as to consistency with the rights against retrospective criminal laws affirmed by ss 25(g) and 26(1).

2.3 The Bill provides for a number of strict liability offences or offences with express defences, and as such engages the presumption of innocence affirmed by s 25(c).

Some of the freedom of expression issues, particularly those related to the regulated period within which advertising restrictions apply, are finely balanced. I have concluded that the Bill is not inconsistent with the Bill of Rights Act. 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.

THE BILL

Freedom of Expression Issues

Definition of "regulated period"

One year period
Potential retroactive application of the 3 month period

Restrictions on expenditure by candidates and parties
Restrictions on expenditure by third parties
Restrictions on issue advertising
Procedural requirements for regulated advertising
Regulation of donations

Retroactive Criminal Laws
Presumption of innocence

THE BILL

The Bill replaces and extends the current provisions of the Electoral Act that govern election expenditure, advertising and donations. Most notably, the Bill introduces a broad regulatory scheme for electoral advertising by persons or entities other than a party or candidate, which extends not only to support for or opposition to a party or candidate but also to advertising in respect of a particular issue that is associated with a party or candidate. The Bill also extends regulation of donations for election activity, broadens the scope for regulation of election expenses and amends related offence provisions.

The direct controls upon electoral advertising and expenditure under the Bill are as follows:

5.1 Election advertisements may be published during the pre-election "regulated period" only if accompanied by the name and address of the person responsible and further if that person is the financial agent of a party or candidate, a third party or if the cost of advertisements by that person is not more than $500.00 in a constituency campaign or $5,000.00 in total (clause 53).

5.2 Election advertisements that promote a party or candidate may only be published by the financial agent of that party or candidate (clauses 55, 60 & 82). Third party election activity must be authorised by the third party's financial agent (clause 101).

5.3 Third party election activity that is subject to regulation includes, in addition to advertising in support of or in opposition to a party or candidate, advertising in support of or in opposition to a type of party or candidate and advertising that takes a position on an issue with which a party or candidate is associated (clause 5(1)(a)(ii)-(iii)).

5.4 Election expenditure during the regulated period may not exceed:

5.4.1 $20,000.00 for a candidate in a general election (clause 62);

5.4.2 $40,000.00 for a candidate in a by-election (clause 62);

5.4.3 For a party in a general election, the total of $1,000,000.00 and $20,000.00 for each constituency contested by that party (clause 84);

5.4.4 For a third party, $2,000.00 in respect of a candidate in constituency campaign and $60,000 in total (clause 103)

The indirect regulatory constraints on electoral activity under the Bill are as follows:

6.1 Third parties must, if they are to engage in electoral expenditure over $500.00 in a constituency campaign or $5,000.00 in total, register with the Chief Electoral Officer and, further, may only do so up to writ day or 14 days before polling day (clauses 16-17).

6.2 Only registered electors, unincorporated bodies comprising registered electors and New Zealand corporate bodies are eligible to be registered third parties. A candidate, party or financial agent may not also be a third party. Third parties may not have offensive, confusing or misleading names (clauses 14 & 17-18).

6.3 Candidates, parties and third parties must disclose the date and amount of donations and the name and address of donors. Financial returns of donations are then publicly available, including a specific return for any donation or aggregated donation over $20,000.00 (clause 26, 33, 38, 41, 51). Donations may be made anonymously to a third party only if the amount is less than $500.00 (clauses 22 & 42).

Further, the Bill provides various administrative provisions where candidates, parties and third parties engage in electoral activity:

7.1 Candidates, parties and third parties must, in order to engage in electoral expenditure, appoint financial agents and, in some instances, auditors (clauses 6-8 & 10-12).

7.2 Candidates, parties and third parties must file financial returns of expenditure and, in some instances, auditors' reports (clauses 72-73, 76, 90-91 & 111-112).

7.3 Candidates, parties and third parties must record donations and file financial returns (clauses 26, 29, 31, 35, 37-39 & 47-49).

7.4 Where any person involved in the administration of the affairs of a candidate, party or third party knows the name and address of an anonymous donor, that person must disclose that information (clause 24).

7.5 Where a donation is made to a third party through a trust, other person or other arrangement, contributors' details and any contribution over the $500.00 limit must be disclosed if known or otherwise may not exceed $500.00 in total (clause 44).

Freedom of Expression Issues

By limiting electoral advertising and/or imposing conditions on electoral activity, all of these provisions constrain freedom of expression in terms of s 14 of the Bill of Rights Act. It follows that it is necessary to consider whether these constraints are justifiable in terms of that Act.

In considering whether these limits are justifiable in terms of s 5 of the Bill of Rights Act, it is necessary to consider whether the limit serves an important objective and whether the limit is rationally connected and proportionate to that objective.[1]

Regulation of electoral advertising and related activity, whether through expenditure limits, authorisation requirements or other regulatory measures, necessarily limits expression on matters of fundamental public interest.

Clause 3 of the Bill states that its objectives include the maintenance of public confidence in election administration, promotion of participation in parliamentary democracy, prevention of undue influence and advantage of wealth and transparency and accountability. These objectives can be seen to be important in themselves and also to reflect the right to genuine elections affirmed by s 12(a) of the Bill of Rights Act.[2]

These objectives are also visible in the current controls on party and candidate expenditure under the Electoral Act 1993. The 1986 Royal Commission on the Electoral System, which recommended the extension of expenditure limits to party advertising and to which the explanatory note to the Bill refers, emphasised the role of such limits in promoting fair elections:[3]

"It is inevitable that there will be some inequality between individuals and between groups in the extent to which they can afford to spend money on electioneering. However, if elections are to be fair and our democracy is to prosper, it is important that the effects of such inequalities are minimised. ... Expenditure limitations involve, however, balancing the principle of fairness against the rights of political parties and candidates to organise and publicise themselves and their policies."

The same principle has been widely accepted as justifying regulation of electoral expression, including through expenditure limits. Notably, the United Nations Human Rights Committee has observed:[4]

"Reasonable limitations on campaign expenditure may be justified where this is necessary to ensure that the free choice of voters is not undermined or the democratic process distorted by the disproportionate expenditure on behalf of any candidate or party.

... In order to ensure the full enjoyment of rights protected by article 25, the free communication of information and ideas about public and political issues between citizens, candidates and elected representatives is essential. This implies a free press and other media able to comment on public issues without censorship or restraint and to inform public opinion. It requires the full enjoyment and respect for the rights guaranteed in articles 19, 21 and 22 of the Covenant, including freedom to engage in political activity individually or through political parties and other organizations, freedom to debate public affairs, to hold peaceful demonstrations and meetings, to criticize and oppose, to publish political material, to campaign for election and to advertise political ideas."

The same principle has been accepted by the European Court of Human Rights and by the Supreme Court of Canada, although not by the United States Supreme Court.

First, in Bowman v United Kingdom, the European Court of Human Rights observed that while the right of free expression affirmed by the European Convention on Human Rights and, particularly freedom of political debate, is a necessary condition for the related right to democratic elections:[5]

" ... the two rights may come into conflict and it may be considered necessary, in the period preceding or during an election, to place certain restrictions, of a type which would not usually be acceptable, on freedom of expression, in order to secure the 'free expression of the opinion of the people in the choice of the legislature'"

The Court went on to observe that while the regulation of elections was an area in which there was substantial discretion, it remained necessary to demonstrate that the particular restrictions on expression were proportionate and rationally connected to the equitable conduct of elections.[6]

The Supreme Court of Canada has addressed the question of electoral regulation in light of the right of freedom of expression under the Canadian Charter of Rights and Freedoms on several occasions, including the following:

17.1 In Libman v Quebec (Attorney-General), the Court struck down restrictions on advertising in referendums under which only the official referendum option committees and affiliates could advertise. While the restrictions in question were excessive, the Court observed that, as a general proposition, restrictions on electoral expenditure generally and relatively restrictive regulation of expenditure by third parties may be justifiable in order to safeguard the electoral process.[7]

17.2 More recently, in Harper v Canada (Attorney-General), which concerned the regulation of third party electoral advertising, the Court noted the difficulties of striking a balance and the deference that should therefore be given to Parliament:[8]

"Under the egalitarian model of elections, Parliament must balance the rights and privileges of the participants in the electoral process: candidates, political parties, third parties and voters. Advertising expense limits may restrict free expression to ensure that participants are able to meaningfully participate in the electoral process. For candidates, political parties and third parties, meaningful participation means the ability to inform voters of their position. For voters, meaningful participation means the ability to hear and weigh many points of view. The difficulties of striking this balance are evident. Given the right of Parliament to choose Canada's electoral model and the nuances inherent in implementing this model, the Court must approach the justification analysis with deference ...In the end, the electoral system, which regulates many aspects of an election, including its duration and the control and reimbursement of expenses, reflects a political choice, the details of which are better left to Parliament."

17.3 Taking those matters into account the Court held:[9]

17.3.1 Limits on electoral activity could be justified in order to promote equality in political discourse, to protect the integrity of the financing regime for parties and candidates by precluding circumvention of that regime through third party activity and to maintain confidence in the electoral process.

17.3.2 The limits in issue were sufficient to allow for meaningful participation and, while third parties were clearly prevented from engaging in unlimited expression, that effect was outweighed by the beneficial effects of the limits upon the electoral process.

17.3.3 The registration, disclosure and other procedural requirements for engagement in third party electoral advertising restricted free expression, but the restriction was justifiable both in order to ensure an informed electorate and because such requirements were necessary to the operation of the regulatory scheme.

The United States Supreme Court has, by contrast, taken a much more restrictive view, holding consistently that while limits on donations can be justified on the basis that it may prevent the appearance of corruption, limits on expenditure cannot. In brief, the Court has not accepted that it is legitimate to limit expenditure so as to promote equality of opportunity among candidates or parties, considering instead that such limits are undesirable because they reduce the quantity of electoral communication.[10]

However, it must be noted that the right to freedom of expression under the United States Constitution is expressed in unqualified terms, unlike the position under art 19 of the International Covenant on Civil and Political Rights, ss 1 and 2 of the Canadian Charter, art 10 of the European Convention and ss 14 and 5 of the Bill of Rights Act. For that reason, the United States position is not followed here.

In summary, the justifiability of the limitations on expression under the Bill must be considered in light of the following:

20.1 Reasonable and equitable regulation of electoral advertising, expenditure and other activity can be justified in order to promote fairness, balance and transparency in elections;

20.2 Comparatively restrictive regulation of third party advertising relative to regulatory constraints on parties and candidates can be justified on the basis that the latter are the principal participants in elections; and

20.3 There is some margin in terms of human rights protections in the determination of appropriate regulatory controls on elections.

Definition of "regulated period"

Clause 4 of the Bill defines the "regulated period" for general elections as follows:

"regulated period means-

(a) where a general election is held in the year in which Parliament is due to expire, whichever is the longer of the following periods:

(i) the period that commences on 1 January of that year and ends with the close of polling day; or

(ii) the period that commences 3 months before polling day and ends with the close of polling day:

(b) subject to subsection (2), where a general election is held in any other year on the dissolution of Parliament, the period that commences 3 months before polling day and ends with the close of polling day"

The definition of regulated period gives rise to two issues involving s 14 of the Bill of Rights Act:

22.1 Is the provision of a regulated period for general elections in the year of expiry of a Parliament for up to one year too long?

22.2 Is the 3 month period that applies to early elections, which includes the possibility of retroactive application of the advertising restrictions justifiable?

One year period

The provision of a regulated period for general elections held in the year of expiry of a Parliament for up to 12 months is a substantial increase on the current three month period provided by the Electoral Act 1993 and is a lengthy period. However, it is rationally connected to the important objectives of the legislation.

The issue is whether or not the limit on the right is proportionate to the objective. Ultimately, this is a matter of political judgment. Extended regulated periods are not unprecedented. For example, the Political Parties, Elections and Referendums Act 2000 (UK) provides for a regulated period of one year before polling day in respect of most general elections.[11] There has been no challenge under the Human Rights Act 1998 (UK) to that period.[12]

Though the imposition of restrictions for this length of time may be at the outer edge of acceptable limits, on balance I have concluded that the provision is not inconsistent with the Bill of Rights Act. In reaching that view, I have taken into account that political expression is limited rather than prohibited, the international precedent and the margin of appreciation that is afforded to Parliament.

Potential retroactive application of the 3 month period

When an election is not held in the year of expiry of a Parliament or is held early in that year, the effect of clause 4 is that when an election is called at less than three months notice, activity undertaken by actual or intending candidates and parties prior to the announcement of that election will be subject retrospectively to the regulatory restrictions under the Bill.[13]

The same point arises in respect of by-elections under clause 58, which provides in relevant part:

"regulated period includes, in the case of a by-election, the period that commences 3 months before the polling day appointed for the by-election and ends with the close of that polling day."

Further, while clause 4(2) will in general ensure that third party electoral activity is not retroactively subject to regulation, the exclusion under clause 4(2) is not comprehensive: the retroactive three month period will apply to third parties where an election is held early - that is, before 31 March - in the year of expiry of a Parliament.

The retroactive application of the regulated period has the potential to subject political advertising and related activity, whether undertaken in anticipation of an election or not, to expenditure and other limits. This has several possible consequences:

29.1 Where parties, candidates and, so far as the issue arises, third parties have engaged in political activities prior to the announcement of an election, they will be subject to corresponding limits during the election campaign itself. The maximum expenditure permitted during the campaign on the part of different parties or candidates will vary according to the level of prior activity. One candidate or party could, for that reason, be disadvantaged relative to others during the campaign period, although they will receive the benefit of the prior advertising.

29.2 It is possible that parties and candidates could restrict their political activity throughout the electoral cycle because of the potential for it to be caught retroactively in the event of a snap election.

29.3 There is the potential for some parties or candidates to have advance warning of the commencement of the regulated period when others do not, and so for those parties or candidates to take advantage of that advance knowledge.

Further, and to the more limited extent that third parties are potentially subject to retroactive regulation, these issues also arise for third party electoral activity.

The provisions are rationally connected to the important objectives of the legislation. In particular:

31.1 They attempt to create an even playing field in the period immediately prior to the election, when it might reasonably be expected that voters will be most affected by political advertising.

31.2 Without such regulation, there would be some risk of a candidate, party or third party taking advantage of advance knowledge or expectation of such an announcement in order to undertake additional advertising not captured by the regulatory regime.

The more difficult issue is whether the limits on freedom of expression can be said to be proportionate to the objectives bearing in mind the potential difficulties that arise from retroactive application.

The provisions at issue are similar to current provisions under the Electoral Act 1993, which are expressed to apply to election activity within the 3 months immediately preceding polling day.[14] These were enacted following the recommendations of the Royal Commission on the Electoral System that the longstanding provisions relating to candidates be extended to parties. In so recommending, the Commission stated that a 3 month period was short enough to render the problems arising from unpredictability insignificant.[15]

Since the introduction of these limits in relation to candidate expenditure, which dates at least to the Electoral Act 1956, there does not appear to have been any difficulty in practice in respect of either limit.[16]

It appears that parties and candidates do currently work within the existing provisions. In Peters v Clarkson the retroactive application of the candidate expenditure limit was noted by the Court but applied without further comment.[17] However, the existing party expenditure limits have only been tested to a limited degree as there have been no snap general elections since the introduction of these limits in 1996.

The matter is finely balanced. However, it is difficult to see how the objectives of the provision could be fully addressed without some form of retroactivity. Moreover, as the Canadian courts have recognised, a significant degree of deference is accorded to decisions of Parliament in this area.

On that basis I have concluded that, on balance, the provisions are not inconsistent with the Bill of Rights Act.

Restrictions on expenditure by candidates and parties

The Bill (following the current provision in the Electoral Act) places caps on total expenditure on electoral advertising by candidates and parties. The restriction of expenditure on an equal basis, provided that the limits are not so low as to preclude proper public discourse, is considered justifiable during the election period. The past conduct of election campaigns under the same or similar limits indicates that these limits are sufficiently high to be justifiable.

Restrictions on expenditure by third parties

The restriction of expenditure by persons and entities other than candidates and parties is a significant innovation under the Bill. While, under the current provision in s 221 of the Electoral Act, only candidates and parties are permitted to engage in electoral advertising, the Bill would permit others to undertake limited election advertising either by registration as a third party or without registration and under a more stringent expenditure limit.

As noted above, there is substantial comparative precedent to support the restriction of third party electoral activity for the purpose of ensuring electoral fairness, provided that the restrictions are not so severe as to preclude meaningful participation in the electoral process. The limits under the Bill are not so low, unlike Bowman, above, as to preclude such participation. It is noted in this respect that the limit under the Bill for registered third parties is 10% of the constituency expenditure limit for candidates and the total limit is just under 3% of the nationwide expenditure limit for parties. These proportions are significantly greater than those upheld in Harper, above, para. 8. Consequently, this restriction also appears justifiable.

A further issue is that only registered electors, New Zealand bodies corporate and unincorporated societies that wholly comprise registered electors may be third parties (cl. 14). The effect is that other persons are limited to the much lower restrictions applicable to unregistered advertising.

The balance here is between the premise that registered electors have a significant entitlement to participate in electoral debate as against the interest of persons other than registered electors, such as young people and non-residents, to do so as well.

On balance, and following the reasoning in the ECtHR and Canadian decisions noted above that parties may properly enjoy greater expenditure limits than third parties, it appears reasonable that persons other than registered electors be subject to greater restriction.[18] The potential for some such persons to make use of a body corporate also provides a further avenue for expression.

Restrictions on issue advertising

A further and narrower issue raised by the Bill is the expansion of regulated electoral advertising beyond promotion of support for parties and candidates (as under the current s 221) to include certain issue advertising, although only when conducted by third parties. Clause 5 defines "election advertisement" as follows (cl. 5(1)(a)):

"...any form of words or graphics, or both, that can reasonably be regarded as doing 1 or more of the following:

(i) encouraging or persuading voters to vote, or not to vote, for 1 or more specified parties or for 1 or more candidates or for any combination of such parties and candidates:

(ii) encouraging or persuading voters to vote, or not to 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 a candidate is stated):

(iii) taking a position on a proposition with which 1 or more parties or 1 or more candidates is associated; ..."

In this respect, cl. 5 can be compared with similar provisions in other jurisdictions:

45.1 The Canada Elections Act 2000 (s 319):

"an advertising message that promotes or opposes a registered party or the election of a candidate, including one that takes a position on an issue with which a registered party or candidate is associated"

45.2 The Political Parties, Elections and Referendums Act 2000 (UK) (s 85(3)):

""Election material" is material which can reasonably be regarded as intended to-

(a) promote or procure electoral success at any relevant election for-

(i) one or more particular registered parties,

(ii) one or more registered parties who advocate (or do not advocate) particular policies or who otherwise fall within a particular category of such parties, or

(iii) candidates who hold (or do not hold) particular opinions or who advocate (or do not advocate) particular policies or who otherwise fall within a particular category of candidates, or

(b) otherwise enhance the standing-

(i) of any such party or parties, or

(ii) of any such candidates,

with the electorate in connection with future relevant elections (whether imminent or otherwise);

and any such material is election material even though it can reasonably be regarded as intended to achieve any other purpose as well."

The point raised by legislation of this kind is the difficulty of differentiating between issue advocacy by persons and entities other than parties and candidates that is and is not indirect support for or opposition to parties and candidates.[19] The Bill follows the Canadian and United Kingdom approaches of imposing an objective assessment of the effect of the advertisement rather than, as in the United States, limiting the regulatory scheme to those advertisements that use express words seeking electoral support.[20]

The rationale for the objective assessment can be seen in the overall objective of the third party regulatory scheme, in that it is directed at advertising that has an impact upon the electoral process.[21] The reference in cl. 5(1)(a)(iii) to "a proposition with which 1 or more parties or 1 or more candidates is associated" is not featured in the Canadian and United Kingdom legislation. Given, however, that this provision will be interpreted consistently both with the purpose of the Bill in maintaining electoral fairness and with the right to free expression under ss 6 and 14 of the Bill of Rights Act, the scope of regulation of issue advertising remains limited to that necessary for electoral purposes.

Given this rationale, no further issue of justification arises.

Procedural requirements for regulated advertising

The Bill requires candidates, parties and third parties to undertake registration and reporting requirements. These impose a procedural constraint on electoral expression but, as they appear necessary for the administration of the substantive regulation of electoral advertising, no further issue of justification arises.

Regulation of donations

The regulation of donations under the Bill is primarily procedural: donors are subject to disclosure requirements and are only subject to donation limits if they wish to remain anonymous.

In Harper, above, the Supreme Court of Canada upheld disclosure requirements as a means of promoting transparency and public trust in the electoral process. Here, the provision for anonymous donations to a limited, but significant, level appears to strike an acceptable balance between the interest of donors in privacy and the public interest in transparency.

Third party directors are limited to $500,000. However, this can be seen to reflect the less central role of third parties. There is also the potential for donors to support more than one third party in respect of any particular issue or issues.

Retroactive Criminal Laws

Clauses 67, 86 and 104 of the Bill create criminal offences where the candidate's, party's, or third party's total election expenses in the regulated period exceed the prescribed maximum amounts. This raises the potential for conduct that was lawful when it occurred to become unlawful by reason of an announcement of a snap election.

The Bill of Rights Act affirms the principles against retroactive criminal laws.

Section 25(g) provides that everyone charged with a criminal offence has the right, if convicted of an offence in respect of which the penalty has been varied between the commission of the offence and sentencing, to the benefit of the lesser penalty.

Section 26(1) provides:

"No one shall be liable to conviction of any offence on account of any act or omission which did not constitute an offence by such person under the law of New Zealand at the time it occurred."

There are two types of offences created by clauses 67, 86 and 104. The more serious offence has an element of knowledge. The less serious offence has no mens rea but has a positive defence. The agent can prove 'that he or she took all reasonable steps to ensure that the election expenses did not exceed the maximum amount'.

In circumstances where part of the expenses are incurred before the election announcement and part after, sections 25(g) and 26(1) are not breached because the offence is not committed until the total election expenses exceed the prescribed amount, which occurs after the announcement.

Where the total election expenses exceed the prescribed amount before the announcement is made, s 26(1) is engaged. However, there is no breach of s26(1) because:

59.1The more serious offence could not apply because the agent could not have had the requisite knowledge that the expenses exceeded the maximum amount.

59.2 A person would not be convicted of the less serious offence because the defence would be satisfied.

To the extent that it may be necessary to do so, the Courts would be required to interpret the offences and defences consistently with the Bill of Rights Act and avoid a conviction of a person in these circumstances.

Given that the person could not be convicted of an offence section 25(g) has no application.

Presumption of innocence

The Bill creates a number of summary offences for non-compliance with regulatory requirements "without reasonable excuse":

61.1 Failure by candidate, party and third party financial agents to file returns of donations (clauses 32, 40(1) & 50(1));

61.2 Failure by candidate, party and third party financial agents to file returns of expenses (clauses 75, 94(1) & 114(1)); and

61.3 Failure candidate, party and third party financial agents to maintain records in relation to returns (clauses 26(2), 31(2), 39(2), 49(2), 95(2) & 115(2)).

The Bill also creates a number of indictable offences. In most cases, there is a more serious offence (corrupt practice) which includes a mens rea element of intention or knowledge, and a less serious offence (illegal practice) which has no mens rea element but has an express defence. The defence may involve proof by the person of absence of intention or knowledge and/or having taken all reasonable steps:

62.1 Filing a false return in relation to donations (Clauses 32(3), 40(2), 50(2));

62.2 Anonymous third party donations (Clause 43(2));

62.3 Exceeding the prescribed amounts in relation to election expenses in the regulated period (Clauses 67(1), 86(1), 104(1));

62.4 Filing a false return in relation to election expenses (Clauses 75(2), 94(2), 114(2)).

The effect of the provision for reasonable excuse is to place a legal onus on the defendant to prove the excuse on the balance of probabilities.[22]

Similarly the express defences in respect of the less serious indictable offences place a legal onus on the accused to prove the defence on the balance of probabilities.

There is High Court authority that an onus in relation to an express defence does not engage the presumption of innocence under s 25(c) of the Bill of Rights Act.[23]

Even if s 25(c) is engaged, as commentators have suggested,[24] these provisions would be justified in light of the following factors:

66.1 The nature of the offences and the penalties involved. Some of the offences are indictable but even those only carry fines.[25]

66.2 The regulatory nature of the scheme.

66.3 The fact the accused is engaged in a regulated activity and can reasonably be expected to have knowledge of the scheme and to act with due diligence. In most cases, the offence can only be committed by the financial agent of the candidate, party or third party.[26]

66.4 The importance of effective regulation is such that it is appropriate to criminalise negligent or inadvertent conduct.

66.5 The difficulties in relation to proof if the elements of the defence were to form part of the offence.

This advice has been peer reviewed, in accordance with Crown Law Office protocol, by Joanna Davidson, Crown Counsel.

Yours sincerely

Val Sim
Crown Counsel

Footnotes

1 See, most recently, R v Hansen [2007] NZSC 7 at [70], [123], [203]-[204] and [271].

2 Section 12(a) provides:

"Every New Zealand citizen who is of or over the age of 18 years-”

(a) Has the right to vote in genuine periodic elections of members of the House of Representatives,
which elections shall be by equal suffrage and by secret ballot; ..."

3 Report of the Royal Commission on the Electoral System: "Towards a Better Democracy" [1986] AJHR H3, 190-191.

4 General Comment on the right to participate in public affairs, voting rights and the right of equal access to public service CCPR/C/21/Rev.1/Add.7, paras. 19 & 25. The Committee is an independent and expert body established under the International Covenant on Civil and Political Rights with responsibility for overseeing compliance with the Covenant. The Committee's interpretations of the Covenant are considered highly authoritative, although not binding, in relation both to the Covenant and the Bill of Rights Act: see, for example, Hemmes v Young [2005] 2 NZLR 755 (CA), 776 and Quilter v Attorney-General [1998] 1 NZLR 523 (CA), 530, 550 and 576-577.

5 Bowman v United Kingdom (1998) 26 EHRR 1, [43]; see also concurring views as to this point in the partially dissenting judgments of Judge Valticos; Judges Loizou, Baka and Jambrek (paras. 4-6 & 12); and Judges Freeland and Levits (paras. 10-13).

6 Above n , [47].

7 [1997] 3 SCR 569, [47]-[50] & [52].

8 [2004] 1 SCR 827, [87].

9 Above n , [101-103] & [105]-[118]; [115] & [120]-[121]; [136] - [146]. See also partially dissenting judgment of McLachlin CJ & Major J, [48], concurring on this point.

10 See Buckley v Valeo 424 US 1 (1974), 20-21, and McConnell v Federal Election Commission 540 US 93 (2003).

11 Sch 9, para 3(7)(a).

12 Commentators have noted the possibility of a human rights challenge to the UK legislation to the extent it involved retroactive regulation of the regulated period. K D Ewing "Promoting Political Equality: Spending Limits in British Electoral Law" (2003) 2 Election L J 499, 510; see also A C Geddis "Confronting the 'Problem' of Third Party Expenditures in United Kingdom Election Law" (2001) 27 Brooklyn J Int L 103, 136-140.

13 In the past three elections, the period between announcement and polling day has been between six weeks and two months. In practice, the minimum time between dissolution and polling day is approximately one month. Section 139(2) of the Electoral Act 1993 requires that nomination day be not less than 20 and not more than 27 days before polling day.

14 Sections 213 and 214B.

15 Above n , 196.

16 No s 7 report was provided in respect of either provision: no issue was raised in respect of the Electoral Reform Bill in 1993 on the basis that it re-enacted existing law, while the 1996 amendment was not included in the Electoral Amendment Bill at the time of introduction.

17 Unreported, High Court, Tauranga Registry, CIV-2005-470-719, 15 December 2005, [12].

18 See, similarly, s 88 Political Parties, Elections and Referendums Act 2000 (UK) restricting third party status to registered electors and certain United Kingdom entities.

19 See A Geddis "Democratic Visions and Third-Party Independent Expenditures: A Comparative View" (2001) 9 Tulane Journal of International and Comparative Law 5, 39-40; see also C Feasby "Issue Advocacy and Third Parties in the United Kingdom and Canada" (2003) 48 McGill Law Journal 11, 15-16.

20 See Geddis, above n , 41, and Feasby, above n , 46-47.

21 See Harper, above, para. 90 (holding that issue advertising of the kind subject to regulation could be differentiated from other issue advocacy in the context of any particular election); see, contra, para. 3 of the dissenting judgment of McLachlin CJ and Major J (suggesting that issue advertising prohibition applies to "a wide range" of issues).

22 See s 67(8) of the Summary Proceedings Act 1956.

23 Francis v Police (High Court, Auckland Registry, AP 154/02, 1 May 2003, Heath J) (s 25(c) not engaged as onus is as to an available defence, not to disproving an element of the offence itself).

24 A Butler & P Butler The New Zealand Bill of Rights Act: A Commentary (2005) 831.

25 The maximum penalty in respect of an illegal practice is $40,000 for a financial agent or secretary and $10,000 in the case of any other person (Clause 125).

26 Where an individual voluntarily undertakes a position of responsibility in relation to a regulated activity, such provisions are considered justifiable. See, for example, R v Johnstone [2003] HRLR 25.

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