Did you know MPs are considering making it an offence, punishable by a fine of up to $20,000, to wear a green ribbon in your hair on election day? If you think this is silly, you'd better tell them so ... soon.

I've posted on the issue of the Government's proposed further tightening of controls on election day campaigning a couple of times already. It's a slightly niche topic, so I promise this will be the last time I raise it. But it's still important enough for me to give it one last going over.

To recap, amongst the fairly uncontroversial measures in the Government's Electoral Amendment Bill is a provision that would further constrain how people can behave on election day. Basically, the proposed law removes an exception to the general rule that you can't display any partisan political material on election day that permits:

ribbons, streamers, rosettes, or items of a similar nature, which are worn or displayed by any person (not being an electoral official) on his or her person or on any vehicle in party colours or a party lapel badge worn by any person (not being an electoral official).

So, in short, it proposes making it an offence (punishable by a fine of up to $20,000) to on election day pin a red rosette on your coat, or tie a green ribbon in your hair, or wear your NZ First lapel badge. Unless, that is, you are acting as a scrutineer for a candidate or political party - in which case it still will be lawful for you to wear a party rosette  within a polling place.

Why is the Government proposing this? Well, it is based on a recommendation contained in the Electoral Commission’s report on the 2011 election, which was then picked up by the Justice and Electoral Committee in its report on the 2011 election. The Electoral Commission stated:

The exemption to the general prohibition on electioneering on election day permitting the display of party lapel badges and rosettes, ribbons and streamers in party colours continued to cause problems. It would be simpler and less confusing, and remove a source of considerable annoyance to many voters, if the exemption was removed and this is what the Commission recommends.

Quite what these "problems" were did not get any further discussion, but I think we can conclude that they amounted to "people complained to us about people wearing these things". Because the Commission's report goes on to say:

The biggest source of complaint on election day was scrutineers wearing party rosettes in polling places – something the law currently allows them to do. The Commission received 77 complaints and polling place managers had over 187 complaints from voters about scrutineers wearing rosettes.

Now, the Electoral Commission is an institution with a purpose. That purpose is running elections in a smooth and problem-free manner. As such, any complaints about how the election is run are an irritant that the Commission would like to see go away. And if changing the law gets rid of such complaints, then that is "a good thing" from the Commission's perspective.

(Although, note that the proposed law change won't even entirely fix the problem of complaints, because it will still let scrutineers wear their rosettes in polling places ... which was what caused more than 2/3rds of the complaints in 2011!) 

But for the rest of us, we might ask "what exactly is it that is going to be improved by this change?" And furthermore, we might ask "is that improvement really worth further encroaching on the right of individuals to demonstrate their party loyalties on election day?" Because the proposal has just that effect - it criminalises people who want to tell the world on election day where their partisan loyalties lie. Not, you might note, in an effort to convince others to think likewise ... but rather just to identify yourself with a particular political view of the world.

Being told you can't do this on election day (by means of rosettes, ribbons and the like) wouldn't be that great an abasement of our freedoms. It's not like this proposal threatens to destroy democracy in its entirety. But by the same token, it's not a completely inconsequential restriction on how people can behave. Some people are very, very proud of their party commitments, and really, really want the world to know of them. So why shouldn't they be allowed to do so on the day when, after all, party politics hits its highest pitch?

Here we might turn our attention to the advice that the Attorney-General received on the Electoral Amendment Bill; and in particular, the reasons that this advice provided for why the proposed amendment is a justifiable limit on the right to freedom of expression contained in the New Zealand Bill of Rights Act 1990. That advice says that the limit is justified because:

The removal of the exception for the display of party colours is consistent with the overall restriction upon electoral canvassing on polling day, and again appears consistent with the objective of fair and orderly elections

While reasonable minds may differ, I think this advice is a bit short of the mark. Sure, we already tightly restrict what people can say on election day: we make candidates and parties take down all their advertising; we ban interfering with people on the way to cast their vote; we even prohibit processions to the voting booths. But saying "we limit expressive rights already, so it's OK to limit them even more" fails to consider whether the reasons for that extra restriction are any good. Equally, the point of the restrictions on election day campaigning - to ensure "fair and orderly elections" - may be acceptable. But why are these new restrictions needed to attain that objective?

The advice given to the Attorney-General on those points is noteably thin. So, with respect, I'm going to disagree with its conclusion and suggest that this proposal isn't consistent with the NZBORA: the proposed law change limits an important right (to express your political allegience in a way that you choose) without demonstrably justifying the need for that limit. 

Which then brings me to the point of this post.

You might be the kind of person who likes demonstrating your party loyalties on election day. Or, you might not particularly go in for that yourself, but also you're not that keen on laws being made that take away other peoples rights without any convincing reason for doing so - especially when those rights relate to how they can express themselves at election time. 

If you are either of these kinds of people, then it's incumbent on you to do something about it. Because as things stand, this proposal will probably just sail through in the middle of an otherwise pretty uncontroversial bill. The only thing that will get in its way is if enough people write to the Justice and Electoral Commission and tell them that they don't want it to become law.

I'm not calling on you to save democracy. I'm just saying that if you take five minutes to make an online submission, you might help stop the world becoming just that little bit greyer.

Comments (15)

by thomas on October 02, 2013
thomas

"or on any vehicle in party colours"

So can I have a pink Ribbon on a Green car?

But not a Green Ribbon on a pink Car?

Or  Heaven forbid a Green Ribbon on a Green Car?

by Andrew Geddis on October 03, 2013
Andrew Geddis

Exactly, Thomas.

Otherwise some people might be "annoyed" and then "complain".

Which we cannot allow.

by Marcelo Rodriguez Ferrere on October 03, 2013
Marcelo Rodriguez Ferrere

Devil's advocate here, Andrew. Most of the provisions in section 197 as it currently stands requires an intention to influence electors before an offence is committed. Whilst section 197(1)(g)(iv) doesn't (on a plain reading) require that intention - and therefore would technically cover your well-meaning proud rosette-wearing party supporters - surely it's unlikely they'd be actually convicted on a strict liability basis?

Any Court, meaningfully applying s. 6 of the NZBORA to this section, would surely require some sort of intention on the part of these supporters - their rosettes would need to indicate some intention that they not only support their party, but they think other electors should do so too. In that sense, a green ribbon wouldn't cut it, would it? I guess what I'm saying is - sure, there's a hypothetical risk here, but do you see any actual risk of this leading to the State trampling upon the rights of well-meaning - if annoying - rosette-wearing busybodies?

by Andrew Geddis on October 03, 2013
Andrew Geddis

Not sure I agree, Marcelo. Section 197(1)(g)(i)&(ii) cover statements "intended or likely to influence any elector". Section 197(1)(g)(iii)&(iv) cover the mere exhibition in public view of a party's name or logo, or "any ribbons, streamers, rosettes, or items of a similar nature in party colours". There's no mention in these latter paragraphs of any intent requirement or likely consequences - the display of these things in and of itself is sufficient to complete the offence.

Furthermore, the Commission seems to think the change will have that effect. After all, the complaints made to it didn't seem to be "I saw someone wearing a rosette/ribbon/etc and they were trying to influence my vote with it." Rather, they simply were "I saw someone wearing a rosette/ribbon/etc ... full stop."

by Chris Webster on October 03, 2013
Chris Webster

Andrew: At the last elections I was a scrutineer for a political party (of which I was not then nor joined as a member - guess they were desperate) and I chose not to wear any said accessories. That was a condition of my agreeing to scrutineer the process.

I was harassed by a few punters & loudly attacked by other scrutineers for NOT wearing said rosettes, colours, ribbons (of any hue or color).

Maybe I too should have complained to the Commission about the actions of the scrutineers.

It was a rural town where many citizens are partisan and simply did not wear political ribbons & the like.

Good heavens imagine the chit-chat in the village that Mrs X and or Mr Y or the Z family had declared their voting habits or had 'come-out' politically by the wearing of colours.

What is next? Banning tying yellow ribbons, white ribbon of peace, pink for breast cancer, black armbands to acknowledge the death of a person, blue for ?

So I lodged a submission and expressed my views in opposition to this proposed amendment.

by Paul Comrie-Thomson on October 03, 2013
Paul Comrie-Thomson

Shimmying in here with an only marginally-related question, but can anyone tell me the reason for the difference in advertising restrictions in national vs local body elections (beyond the difficulty of restricting advertising when the ballot is being conducted by post over a longer period of time)?

by Andrew Geddis on October 03, 2013
Andrew Geddis

@Paul,

National elections matter. Local ones don't.

Or, more cynically, national elections affect MPs who get to make laws about the issue (and do so repeatedly - virtually every election cycle sees some level of tinkering with the rules). Local one don't (and so get ignored until something like Banks and Dotcom makes the issue so big that it can't be).

by Simon Connell on October 03, 2013
Simon Connell

Some people are very, very proud of their party commitments, and really, really want the world to know of them. So why shouldn't they be allowed to do so on the day when, after all, party politics hits its highest pitch?

To a voter (who s 197 seems to be concerned with protecting from influences on election day), the following three people probably appear identical:

  1. someone wearing a green ribbon with the intention of influencing other people to vote green;
  2. someone wearing a green ribbon with the intention of displaying party affiliation, without any particular intent to actually influence anyone else;
  3. someone wearing a green ribbon because the shade of green appealed to them, who didn't even realise the political implications of the colour.

There's a balancing exercise here between protecting voters from influence and freedom of expression. What's more important? Protecting our voter from the potential perception of influence (even if it's not intended by the ribbon-wearer), or protecting our ribbon-wearer's right to express their party affiliations?

Perhaps it's reasonable to ask people to resist displaying their party committments because, whether they like it or not, such displays cannot avoid possibly giving the impression of an attempt to influence to other voters.

Voting free of influence and freedom of expression, in the abstract, seem like important things. When we're talking about the freedom to wear, or not see, a ribbon/streamer/rosette/etc., it starts to feel a little silly and inconsequential though.

If it's actually the case that there's a substantial number of voters who genuinely feel that their ability to vote free of influence is really impinged by partisan ribbons, then I might be supportive of anti-ribbon measures (which perhaps ought to extend to scrutineers.) One could say that the number of complaints suggests that there are some people out there that the previous sentence actually applies to - and even more who didn't actually complain (perhaps they just stayed at home and didn't vote because it was upsetting to see someone wearing a green ribbon.) Or, it could be the complainants just don't like seeing other people's partisan displays, despite being able to vote just fine. The latter seems much more likely to me. I doubt that anyone's vibe on polling day is really that impinged by the odd ribbon or rosette. So, I made a submission against the removal of the exception.

by Raymond A Francis on October 03, 2013
Raymond A Francis

I believe that originally this law was brought in to stop 'treating" and some bullying ways of influencing voters 

The Parties still try to influence us with various bribes and entreaties, anything that keeps them out of my face on election day would get my tick.

Its only one day every three years that people have to give up their precious right to wear what they like

by Philip Grimmett on October 04, 2013
Philip Grimmett

Thanks for the post. Another example of legal action against a phantom concern. It makes me feel like not turning up on election day for fear of bring fined for what l am wearing. Is that whole idea?

by Siena Denton on October 04, 2013
Siena Denton

My most Heavenly Papa said I can don the Coat of many Colours and send into Slavery all the Political Wild Beasts who are nothing more than a Burden on his Humble Flock. 


by Matthew Percival on October 04, 2013
Matthew Percival

Must remember not to wear Blue Jeans next election day in case I get accused of intimidation voters into voting National.

In fact I may have to vote naked just in case.

by Ken Crawford on October 05, 2013
Ken Crawford

I was waiting for family to vote at a Brisbane polling booth last month . An enjoyable and fascinating experience as people in party colours handed out fliers  showing supporters how to vote to get the desired political impact under their complicated Aussie preferential system. Lots of cheerful interactions, no rudeness or aggression, and the added bonus of lovely aromas from the sausage sizzle. Mind you, most Aussies aren't as delicate as Raymond I'd guess.

by Frenchy on October 06, 2013
Frenchy

I'm not sure I really understand electioneering isn't allowed on election day. As long as it doesn't cross the line into bullying or intimidation, does it really matter whether candidates' billboards are still up? Perhaps they could just have a clean zone around polling places?

This reminds me of the US voter ID laws - a restrictive law created to solve a non-existant problem. 

by Andrew Geddis on October 06, 2013
Andrew Geddis

@Frenchy,

The "no campaigning on election day" rule serves a couple of purposes. One is as a prophylactic against any sort of intimidation/undue pressure (it's hard to heavy someone into voting one way or another if you can't even use a party's name!). The second is aesthetic - it marks voting out as a calm, deliberative, reflective process that takes place in a solemn fashion, without the trappings of the campaign intruding upon it.

Whether either of these reasons are any good is arguable ... but I guess you might say that they are part of "how we do elections" here in NZ. In other words, part of how we NZers think about electoral democracy is that it "should be like this". It doesn't have to be, of course ... but if it were different, it wouldn't be our system any more.

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