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Electoral Finance Act lawsuit tanks

By Steven | June 24, 2008

Was the Crown Law Office vet that found that the Electoral Finance Bill wasn’t inconsistent with the Bill of Rights Act wrong? Should the Attorney-General have reported to Parliament that the bill was inconsistent with our rights to freedom of expression? Is the Electoral Finance Act itself inconsistent with the Bill of Rights Act?

John Boscawen et al say yes. They’ve taken these issues to the High Court. But they faced a big hurdle. Would the courts even be prepared to rule on them?

The answer is no. On the first two questions – getting the courts to second guess the Attorney-General’s advice to Parliament – this should come as no surprise. The courts don’t like to trespass on Parliamentary Privilege territory.

But on the third – the issue of the consistency of the EFA itself with the Bill of Rights – I was surprised to see the High Court summarily strike out the claim. Clifford J said the Declaratory Judgments Act can’t be used to address moot points because there’s no live underlying dispute between the parties. The situation might be different, he said, if the applicants “sought declarations of inconsistency through NZBORA itself”.

The question of whether the courts might be prepared to issue a declaration or “judicial indication” that a particular statute is inconsistent with the Bill of Rights Act has been much discussed by academics (and occasionally by judges). To strike it out here, with little reasoning, on what looks like a rather technical ground, seems wrong to me.

Perhaps there will be an appeal.

Topics: Electoral speech, NZ Bill of Rights Act | 5 Comments »

5 Responses to “Electoral Finance Act lawsuit tanks”

  1. ChrisBishop Says:
    June 26th, 2008 at 12:12 pm

    Also very surprised. It doesn’t appear as if his Honour even really engaged with that important, and very distinct, issue in the case.

    For mine, I don’t think that NZBORA gives the courts the power to issue a Declaration of Inconsistency (DoI) as a free standing remedy (ie, having no beef with anyone bar the fact that I think a BORA right has been unjustifiably infringed by legislation, even if s 4 means the legislation prevails, I can get the court to declare that to be so).

    I accept that where a BORA-consistency issues arises in the context of a genuine dispute between parties, the courts may well “reason” their way to a position where they say that the legislation is inconsistent through the process of statutory interpretation in light of BORA – indeed Hansen explicitly provides for this approach. But I think it is very different for the courts to say they have the power to just “declare”, irrespective of any utility to the declaration or dispute between parties, that something is a breach of BORA.

    That said, I accept it is a finely balanced point, and it is a shame that his Honour didn’t engage with the above points, as well as the nature of remedies under BORA (the lack of a remedies section, Baigent, etc), whether a declaration assists or hinders Parliament’s legislative function, etc…

  2. ChrisBishop Says:
    June 26th, 2008 at 12:12 pm

    Steven what are your thoughts on declarations of inconsistency?

  3. Steven Says:
    June 26th, 2008 at 12:40 pm

    Haven’t thought about it hard. My inclination is to favour them as another means of promoting “dialogue” between the courts and Parliament and another method of defining and supporting important rights.

  4. Rex Widerstrom Says:
    June 26th, 2008 at 10:41 pm

    Surely the better option for obtaining a judicial ruling would be to wait for someone to breach the EFA (and it’s surely only a matter of time till someone does) and then advance the BORA as (part of) a defence?

  5. Andrew Geddis Says:
    July 1st, 2008 at 5:57 pm

    I think part of the reason the declaration aspect was struck out was that the claimants simply spent so little time arguing it – on their pleadings, it was almost an afterthought to the s.7 point. (Why this is, I don’t know … exactly what value would there be in getting a declaration almost a year down the track that aspects of the EF Bill were inconsistent with the NZBORA … this is news, why?)

    Furthermore, under the Declaratory Judgments Act 1908, s.4, jurisdiction only exists:

    “Where any person has done or desires to do any act the validity, legality, or effect of which depends on the construction or validity of any statute, … such person may apply to the High Court by originating summons for a declaratory order determining any question as to the construction or validity of such statute … .”

    Simply put, the claimants hadn’t shown how the EFA would affect their legal rights in any way, shape or form. So an application under the Declaratory Judgments Act for general review of the EFA was the wrong remedial avenue.

    That said, how could one actually get a declaration of inconsistency?

    (1) Breach the EFA, and argue the NZBORA in your defence (as Mr Hansen did in his case before the Supreme Court). This has obvious risks (i.e. getting convicted) and also may not get an express declaration (i.e. the court simply invokes s.4, and leaves the implication there);

    (2) Seek a declaratory judgment as to whether the EFA prevents you from doing something (like publishing election adverts) … but you may simply get an answer “yes it does” (or “no it doesn’t”), rather than a declaration on the effect of the NZBORA;

    (3) Ask the court to just make up a new common law/inherent remedial power to issue declarations. It’s done it before – look at Baigent’s case!


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