A Weekly Report from the Keyboard of Murray McCully MP for East Coast Bays

Consensus or Conflict

The prospect of a bi-partisan framework for foreign policy in this country was a central feature of the National Party discussion paper on foreign affairs, defence and trade released this week.

The paper notes that the harsh realities of office have forced the Labour Party closer to the centre ground, well removed from the extremist nonsense talked at Labour Party Conferences in years past. The decision by the National Party to deliver certainty around the retention of the anti-nuclear legislation removes the remaining obstacle to the sort of substantially bi-partisan framework for New Zealand foreign policy that existed 30 years ago.

International relations have much of the character of a super-tanker. Attempts to make frequents turns or to stop and start simply result in a loss of momentum. For a small country, so dependent on international trade, it is hugely in New Zealand’s interests to find agreement on the goals and architecture of our foreign policy, even if there is disagreement and debate about matters of style or emphasis. That is the prospect that the National Party firmly put on the table this week.

How fascinating it was to see the immediate responses of Foreign Minister Winston Peters and Trade Minister Phil Goff – two Ministers who’s Ministerial warrants charge them with the pursuit of New Zealand’s interests abroad. Both, it seems, were determined to seize conflict from the jaws of consensus. Neither, it is clear, was prepared to place the national interest ahead of the prospect of a good old roll around in the political gutter.

Both Mr Peters and Mr Goff need to think again. The offer of bi-partisanship remains upon the table. And if they are not prepared to accept it they should be judged too petty and small for the substantial warrants they carry.

EU Trade Deal

Our Prime Minister is currently in Europe, claiming credit for raising the prospect of a free trade deal between NZ and the EU. In that endeavour she need not fear any petty politicking of the Goff/Peters variety from her National Party opponents.

Indeed, National Party spokesman on Trade, Tim Groser, proposed exactly such an agreement in a speech last March marking the 50th Anniversary of the Treaty of Rome. After canvassing the basis for such an agreement Groser concludes an NZ/EU trade agreement would be “first up on my list of third generation trade policy issues.”

And in the National Party discussion paper released this week under the heading “FTAs Outside the APEC Region”, it’s right there at the top of the list of the three key negotiating opportunities.

Electoral Finance Bill Damned

The Electoral Finance Bill must surely rate as one of the most evil and anti-democratic pieces of legislation ever to darken Parliament’s chamber. Designed to silence and intimidate the Government’s critics, whilst sanctioning Labour Party plans to use taxpayers’ money (again) for campaign purposes, the Bill has drawn unusual condemnation. How such a measure could have passed the scrutiny of officials, Cabinet Committees and the Cabinet, has been the cause of considerable speculation. And just how the Bill was deemed acceptable under the Bill of Rights Act is a focus of particular attention. (The worldwide headquarters of mccully.co strongly recommends a glance at the Cronywatch special on page two of this week’s National Business Review in this respect).

Each Bill is the subject of scrutiny by Crown Law lawyers before being introduced into Parliament. The Attorney-General is required to report that Bills are consistent with the New Zealand Bill of Rights Act or, in the rare cases where it does not comply, in what respect they conflict. The Electoral Finance Bill was deemed, by the Attorney-General and Crown Law, to comply with the Bill of Rights. And some of the best legal brains in the country are asking how this could possibly be.

The normally calm and circumlocutory Law Society did not mince its words about the Bill:
“It is very rare for the Society to come to the view that a bill is bad and should not proceed further. But the Electoral Finance Bill is one such Bill.”

As to whether the Bill complied with the Bill of Rights, the Society was in no doubt:
“The bill seems to be inconsistent with the New Zealand Bill of Rights Act 1990 as it limits freedom of expression in a way that cannot be demonstrably justified in a free and democratic society.”

And as for the certification by Crown Law that the Bill complied with the Bill of Rights:
“The opinion on Bill of Rights Act consistency given by the Crown Law Office in relation to the present bill does not seem to engage with the points made in this submission.”

Even the Labour Party’s very, very, very good friends at the Human Rights Commission were in no doubt:

“Section 14 of the BoRA states that ‘everyone has the right to freedom of expression, including freedom to seek, receive and impart information and opinions of any kind in any form.’ As the Bill seeks to limit election advertising and electoral activity it clearly infringes S14.”

So, on what possible basis did Crown Law decide that the Bill complied? Well, the answer is, shall we say, interesting.

Crown Law “acknowledges that the issues are finely balanced”, but concludes 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.” How very, very interesting. The Bill of Rights Act, by which New Zealanders’ freedoms are underwritten by law, is now, in the view of the Crown Law Office, subject to the “political judgments” of the Labour Party which should be given a “wide margin of appreciation”.

The Law Society clearly finds such findings thoroughly unconvincing:

“…the Society submits that the cumulative effect of the detail of the bill, as illustrated by this submission, is such that the Bill of Rights Act guarantee would be infringed by some margin, and beyond the ‘margin of appreciation’ to Parliament upon which the Crown Law Office opinion relies.”

The Society then proceeds to point out that the notion of a “margin of appreciation” in this context is complete bollocks (they are too polite to use the term, but the worldwide headquarters is not). The term “margin of appreciation” is one that is applied in overseas jurisdictions where legislation is being challenged in the Courts on grounds that it conflicts with the supreme law of the constitution. The notion that it should be used to rort the Bill of Rights certification process in this country is, to say the least, inventive.

The Crown Law officer who gave the Electoral Finance Bill a clean bill of health under the Bill of Rights was one Val Sim. Val Sim? Where have we heard that name recently?

New Law Commissioner Appointed

Completely unrelated to the above, the worldwide headquarters of mccully.co was this week the recipient of a press release by the Justice Minister Mark Burton (yes, the same Mark Burton who introduced the Electoral Finance Bill) announcing the appointment of a new member of the Law Commission. A Crown Law Office lawyer by the name of Val Sim has been appointed by Minister Burton to the Law Commission. The very same Law Commission that is so very fortunate as to have the services of one Sir Geoffrey Palmer as its President. And Sir Geoffrey was quick, in a clearly choreographed move, to release a statement welcoming Val Sim’s appointment. How very very cosy.

Sir Geoffrey has been busily engaged in turning the previously independent Law Commission into something roughly approximating a partisan constitutional mouthpiece for the Clark Government. A place, to be sure, where there would be a ready vacancy for someone with an intimate understanding of the concept of a “margin of appreciation” for the Labour Party.

ENDS

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