Government legal opinion reveals political donation caps can infringe the right to free speech

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Golriz Ghahraman said she was surprised that her bill was not considered under the Bill of Rights Act. Photo/Mark Mitchell

Green MP Golriz Ghahraman, a former human rights lawyer, was surprised that her bill, which aims to strengthen New Zealand’s electoral laws and its democratic values, was deemed incompatible with the Bill of Rights – just .

Ghahraman’s bill is intended to be a sweeping fix to New Zealand’s electoral rules, it completely repeals prisoner voting bans (going beyond Labour’s limited repeal), it lowers the voting age at 16 and imposes an annual cap of $35,000 on someone’s political donations – there is currently no cap.

Bills introduced in Parliament are scrutinized to determine if they violate the Bill of Rights. Those who do so receive a “Section 7 Report”, in which the Attorney General verifies whether the bill complies with the Bill of Rights.

If the legislation does not conform to the Bill of Rights, then the Attorney General must consider whether inconsistencies can be justified in a “free and democratic society”. These reports are written by the Department of Justice or Crown Acts, but are signed by the Attorney General.

In the case of Ghahraman’s bill, Attorney General David Parker’s review found parts to be inconsistent with the Bill of Rights, but fair. He wrote that the “minor” violation of the Bill of Rights could potentially be justified, but he would need more information.

Parker’s advice on the bill was concerned that the donation cap would violate the free speech protections of the Bill of Rights. However, he added that it might be possible that this violation is justified in a “free and democratic society”, which would mean that the bill would pass its veterinarian of the Bill of Rights.

Parker wrote that any “non-anonymous” political donation was an “expressive act” and therefore protected by the free speech clauses of the Bill of Rights. He went on to say that the size of a donation suggests different levels of support for any party: a small donation suggests less support than a large donation.

This means that while Ghahraman’s bill does not violate people’s right to express themselves by donating, it violates their right to amplify that expression by making significant donations.

That alone did not mean that he had failed his report under Article 7.

Parker wrote that the cap was “certainly capable of being justified”, but an “absence of information” before him indicating whether it was “proportionate” meant that he had to conclude that the bill was inconsistent with the Declaration. Rights.

Ghahraman said she was surprised by Parker’s response, but she took a different view on whether donations fell under the definition of speaking.

She called on Labor to back the bill at the select committee so the report would not be the final say on whether the donation rules breached the Bill of Rights.

“My main concern is that we are hearing from a range of independent rights experts like the Human Rights Commission who should apply and define these rights both on the amount and on whether Crown Law advice are correct regarding free speech and donations,” she said. .

Ghahraman said she thought Parker was also surprised by the advice, given that he made it clear in his report that the donation caps could in theory be justified, he just needed to see more information.

“He specifically said he didn’t believe a limitation on donations would be a violation of Bill of Rights law, so he was very careful,” she said.

Ghahraman said the episode highlighted the discrepancy in resources given to government bills and MPs’ bills. She said officials could have the ‘information’ they had requested

Officials making Section 7 reports have a lot of information in Cabinet documents and official records to rely on – this is not the case with MPs’ bills.

She called the process “unbalanced”.

“Crown Law is literally pointing out that they don’t have evidence, and obviously they’re not going to investigate the evidence, that’s not their job, [but] we don’t have access to it to make our case,” Ghahraman said.

Many countries that fall into the “free and democratic” camp, Canada, Ireland, Japan and the Australian state of New South Wales, all have caps below the $35,000 proposed by Ghahraman – the Canada’s cap is only C$1,675 ($2,080).

When asked if reports on Section 7 of MPs’ bills should be conducted in dialogue with the MP, Parker said he did not think a report that “raises questions that need to be addressed before a bill is finally passed should necessarily be considered criticism of the bill”.

“It’s information for the House, and sometimes the House will choose to continue to support the bill, and then those issues will go to a select committee,” Parker said.

He said it was “not practical” to devote significant resources to MPs’ bills given there were so many on the ballot.

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