KEY POINTS:
The Government is intent on rewriting electoral finance laws because it wants to stop the wealthy friends of political parties skewing elections by spending big money on scaring voters.
Such behaviour is undemocratic, it says. Yet the new law paves the way for election campaigns peppered by legal challenges. And when the courtroom becomes as big as the ballot box, the party with money to buy the best lawyers will be advantaged. This is equally undemocratic.
Worse still, it is a sure way of having election results determined by judges. Judges stay out of politics according to a longstanding constitutional convention. But this new law turns that on its head.
The Electoral Commission's chief executive, Helena Catt, said last week that the commission fears the bill will see New Zealand's election season go the American route "where each party up and firing the lawyers at each other becomes as much a part of the campaign as traditional advertising".
When the same thing happened to the America's Cup we raised an eyebrow and let them get on with it. But when it happens to the means by which we all elect who governs there is good reason to be seriously concerned.
Bluntly speaking, the law is unintelligible. There goes another convention. The rule of law depends on all law being clear enough so we can all know the boundaries of legal behaviour in advance.
This bill fails to define the boundaries. Instead we're told that common sense will prevail.
But what is common sense in the midst of an election campaign? And what kind of law is it when no one can know what it means until someone tests it in the courts?
Such uncertainly about the true meaning of the proposed law fundamentally erodes the principle of the rule of law. It also puts judges in an unenviable position.
It will be judges who finally have to distinguish when an MP is acting in his or her capacity as a member of Parliament as opposed to touting for votes. This is complex stuff. The bill offers no guidance. And judges will be forced to rule either while the campaign is under way or as the country awaits a result.
The Electoral Commission advises parties on how to conduct themselves during a campaign. But it can make no sense of key parts of the proposed law. It has asked for guidance as to how it should interpret it. But like the rest of us the commission will have to wait for the court cases.
Of course "common sense" may mean some parties pragmatically cut deals not to fight each other in court. If that happens will the commission or even the police still be able to prosecute, since many breaches of the bill are illegal or corrupt practices?
And will concerned citizens or party dissidents still be able to challenge conduct even when a deal has been struck?
In future, parties seeking advice from the commission about the legality of a proposed action will be told to consult their own counsel. The most likely outcome is that everybody will be talking to their lawyers - parties, candidates, third-party lobby groups, citizens agitated by a certain MP or a certain party.
Think Winston Peters and Bob Clarkson at the last election and multiply. And since the period of regulated speech begins on January 1 expect the legal challenges to begin as soon as the first dollar is spent or suspected of being spent.
It might be good business for public law litigators, but it is bad news for the democratic process. Perversely it may also fetter free speech.
The current cost of a full day at the District Court is about $30,000. That's a mighty deterrent to anyone with something to say who's fearful of being challenged by a rival.
And despite the assurances about common sense, who wouldn't challenge everything? The vagueness of the proposed law leaves the door wide open.
And here's the political calculation - in the heat of a political race to rule, and with the stakes so high, legal challenges will be distracting for an opponent and guaranteed publicity for the challenger.
They will provide a high profile platform for trouble makers and agitators to paint themselves as high-minded and public spirited. Voters may find the whole process a turnoff.
Worrying too is how this might all affect the final election result. Come election night, however the numbers fall, if there are legal challenges lodged about campaign spending then the final distribution of seats in Parliament may not be determined by party vote, but by judges.
That could mean months of uncertainty as the court cases work their way through.
None of the politicians supporting the Electoral Finances Bill can intend to have judges decide an election. But nor can they say they weren't warned.
The Law Society has called on the Government to send the amended bill back to a select committee for further consideration. That would be the right thing to do.
Democracy and elections exist for the benefit of citizens, not politicians. Those same citizens should be given the opportunity to review the law that regulates their participation in the electoral process.
Those who are meant to run the election and enforce this legislation have asked for more clarity. They should get it and they cannot if the bill is rushed through in the last week Parliament sits.
* David Cochrane is a partner and Linda Clark a consultant with national law firm Chapman Tripp. The views expressed are personal.
