Wednesday, June 11, 2008

JOHN BOSCAWEN: Freedom of Speech Trust Newsletter

Newsletter No.2 – Electoral Finance Act

By John Boscawen – Freedom of Speech Trust

10 June 2008

The Electoral Finance Act was passed by Parliament in December last year despite the objection of our Human Rights Commission, the New Zealand Law Society and all our major newspapers. The Act imposes restrictions on free speech far beyond what both the Human Rights Commission and the Electoral Commission considered reasonable. The Freedom of Speech Trust has been established to campaign for the Act’s repeal. Please feel free to circulate this newsletter to your friends and associates.

A tribute to Graham Stairmand

It is with great regret and sympathy that I acknowledge the very recent death of Graham Stairmand, President of the Grey Power Federation.

Graham was a strong opponent of the Electoral Finance Bill and he joined Garth McVicar, Rodney Hide and myself in a legal action against the Bill late last year. (See below).

His work for senior citizens was acknowledged by the presence at his funeral of the Minister for Senior Citizens Hon. Ruth Dyson, National’s spokesperson for Senior Citizens Sandra Goudie and MPs Peter Brown and Nicky Wagner.

I acknowledge his opposition to the Act, the support he gave me and the courage he showed in joining the legal challenge. I extend my deepest sympathy to his family.

Bill of Rights challenge against the Attorney General returned to High Court – 15 May

In the absence of a written constitution one of the most important protections we have to our democracy and to our rights to free speech is the New Zealand Bill of Rights Act 1990. This Act requires the Attorney General to notify parliament of any bill that comes before the House that is “inconsistent” with the Act.

Almost everyone (and certainly the Human Rights Commission and the New Zealand Law Society) agrees that the Electoral Finance Bill was inconsistent with the Bill of Rights Act when it was introduced last July, yet the Attorney General failed to notify the inconsistency. This is hard to comprehend given the Bill required every New Zealander to first sign a statutory declaration before they spent a single dollar expressing any political opinion in election year. Incredibly the Crown Law Office thought this was acceptable and not inconsistent with the Bill of Rights.

Late last year I, along with Garth McVicar, the late Graham Stairmand and Rodney Hide commenced legal proceedings in the High Court in Wellington seeking a declaration that the Attorney General failed in his duty. We sought urgency.

The Crown opposed urgency and sought to have the proceedings struck out – so, in the event they were successful we would have been denied the chance to argue our case.

Earlier this year we updated our Statement of Claim to argue that the Electoral Finance Act, (as passed) was also inconsistent with the Bill of Rights.

The strike out application was heard in a full day open court hearing at the Wellington High Court on 15 May. Justice Clifford reserved his decision.

Tauranga Protest – 3 May

On Saturday 3 May between 600-800 people marched through downtown Tauranga opposing the Electoral Finance Act. The protest march was an outstanding success and was the largest protest seen in Tauranga for several years – certainly since the 1981 Springbok Tour, if not before.

The protest was widely covered in the Bay of Plenty with extensive coverage in the Bay of Plenty Times – which featured it as its main front page story on the Thursday before the march.

For their coverage, see link.

TV3 also covered a full report of the protest on their main 6.00pm news bulletin.

Other Protest Actions

In addition to the Tauranga protest we have organized two recent protests. In the first, 35 opponents of the Act protested outside the Rendezvous Hotel in Auckland (formerly the Carlton Hotel) on 23 May where the Prime Minister was addressing a post Budget luncheon. Our placards called for a repeal of the Act and a restoration of free speech.

In the second protest, a small group distributed leaflets to the attendees of the Green Party Conference in Auckland over Queen’s Birthday weekend. We highlighted the fact that the Green Party was proposing a closer working relationship with the Maori Party. The irony was that the Maori Party had been a strong opponent of the Electoral Finance Act. In his speech to parliament on the third final reading of the Bill, Maori Party MP Hone Harawira said:

‘Yes folks, money talks, but nothing talks quite like the truth and the truth about this bill is that it’s nothing but an arrogant dismissal by this Labour-led government to deny the citizens of Aotearoa New Zealand the right to participate in one of the fundamental rights of any so-called democratic society: How you elect your government……. Money is not what drives people to vote. It is the truth’.

Our message to the Green Party MPs and their supporters was to show some leadership, acknowledge that parliament did not fully understand what it was doing when the Act was passed and move to repeal it.

More protests, particularly in provincial areas, are planned for later this year.

Uncertainty of our Electoral Law and the likelihood on legal challenges post election day

When I first began my campaign of opposition to the Electoral Finance Bill my focus was the impact of the Act on free speech and the right of ordinary citizens to participate in the electoral process. The recent ruling by the High Court that the Engineering, Printing Manufacturing Union people may be prohibited from registering as a third party because it is involved with the management of the Labour Party is just one example of the restrictions the Act imposed.

However an equally important issue has emerged over recent months and that is the application of the Act to the MPs, themselves. This is well illustrated by the Chief Electoral Officer ruling that Trevor Mallard’s car, painted red and emblazoned with his name and Labour Party logos is an “election advertisement”. While the trivial issue may be the car failed to carry the authorization of Trevor Mallard’s financial agent, the much more important issue is that the cost of his election advertisement must be included in his $20,000 expense allowance for his election campaign in the Hutt electorate.

The problem he faces, is how much and what cost does he include? Certainly the cost of the paintwork but what about the running costs of the car? - a form of depreciation allowance?

Trevor Mallard is now faced with the very real prospect of having to run a very conservative campaign, and spending well within his $20,000 allowance. The alternative is to spend close to the $20,000 allowance, and to run the risk, assuming he retains his electoral seat, of being challenged in court post election day on the ground he did not fully return the full cost of his car’s advertising. This highlights the point made by Professor Bill Hodge speaking at our Auckland protest in March that the Act is uncertain and is likely to lead to a number of legal challenges post election day with the final result of the election not known until well into next year.

Continuing Campaign

If you are concerned about the implications of the Electoral Finance Act on our democracy and on free speech I would be grateful for any support you can give to bring about repeal of the Act. In the first instance you can forward this email to your friends and family.

Financial contributions can be made to Trust at PO Box 42-267, Orakei, Auckland, or direct to the Trust’s bank account 12-3252-0039335-00.


John Boscawen

Trustee – Freedom of Speech Trust


Political Animal Electoral Finance Act coverage

The purpose of the Bill is clear

c Political Animal 2008

Cartoon c Stan Blanch 2008

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