Printed in the Independent Financial Review, 26 September 2007

It sounds a little melodramatic to insist that freedom of speech is seriously under threat in this country. This sort of statement is usually greeted with the benign cynicism reserved for claims that the sky is falling, and we reassure ourselves that such a thing could not really happen in a modern, liberal democracy. But this time the doomsayers are right. There actually is a “clear and present danger” to one of our most important freedoms, to the very foundation of our democratic system of government.

The Electoral Finance Bill, currently before a Select Committee, would stifle the free flow of ideas and debate about election issues in the “regulated period” leading up to an election. This period would usually begin on 1 January in an election year. With next year’s election expected late in the year, the Bill’s restrictions could apply for as long as 10 or 11 months.

This is obviously dangerous. The strength of our democracy depends on full participation by informed voters, and without it, government is not truly “by the people.” Voters’ ability to make informed choices and to participate meaningfully in democratic elections depends on the free flow of ideas and debate. Without it, votes are just uneducated guesses. This is why freedom of speech is generally understood to be part of the “lifeblood of a democracy.”

The Bill would apply to almost anything a member of the public wanted to say about an election issue by regulating “election advertisements.” The definition of “election advertisement” is staggeringly wide. It would catch “any form of words or graphics” taking a position on any issue that a party or a candidate is associated with. For example, a letter to a friend which commented that lower taxes are a good idea, or a research report saying the same thing, would be an “election advertisement” if a party or a candidate had made cutting taxes part of their platform for election.

Anything caught by the definition would be subject to a raft of regulations and restrictions that would stifle and even prohibit free speech. At a minimum, anyone wanting to discuss an election issue would have to complete a statutory declaration stating that they have not and will not spend more than $5,000 in the process. If our tax cuts letter-writer failed to do this, he or she would be committing an “illegal practice.” Anyone wanting to spend more than $5,000 would have to register as a “third party.” This would subject them to a range of requirements, including appointing a financial agent, reporting donations and spending and in some cases having their reports audited, even after all this their upper spending limit would only be $60,000.

There are a number of exceptions to the definition, but they create more problems than they solve. For example, newspaper content selected by the editor and “non-commercial” blogs would be privileged forms of communication, exempt from the Bill’s restrictions. However, a letter to a friend or a sign held up at a protest that expressed the same sentiments as a published letter to the editor or a posting on a blog would be subject to the full force of the Bill. Simply increasing the list of exceptions will not fix the problem.

Obviously, the Bill’s restrictions do not prohibit free speech entirely, but they may have almost the same effect. When faced with these restrictions and compliance requirements, many people simply will not speak. Even if this “chilling effect” is overcome, members of the public will run into the brick wall of the $60,000 limit. This ungenerous limit will quickly be met by many of those who would like to have a say on important election issues.

The Bill’s position on free speech is therefore extremely restrictive. It is contrary to the approach of the New Zealand Bill of Rights Act, which affirms “the right to freedom of expression” in no uncertain terms, subject only to reasonable limits that can be “justified in a free and democratic society.” By contrast, the Bill’s provisions almost amount to a presumption against free speech, allowing it subject only to certain restrictions.

The dreadful irony of the Bill is that by restricting speech on issues that parties and candidates decide to associate themselves with, debate on the very issues that the contestants themselves have defined as important and worthy of discussion is shut down. Faced with these concerns, the Government has responded by saying its intention is not to restrict “legitimate groups that want to play an active role in the public debate.” If so, there has been a horrible error in translating intention into effect, creating a Bill that is so flawed that the only solution can be to withdraw it.