Peters v The Electoral Commission
| Jurisdiction | New Zealand |
| Judge | Mallon J |
| Judgment Date | 09 March 2016 |
| Neutral Citation | [2015] NZHC 394 |
| Docket Number | CIV 2015-485222 |
| Court | High Court |
| Date | 09 March 2016 |
[2015] NZHC 394
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CIV 2015-485222
Under the Judicature Amendment Act 1972
In the Matter of an application for judicial review
B P Henry and A M Dunlop for the Applicant
P J Gunn and M J McKillop for the Respondent
Judgment Of Mallon J
Table of Contents
| Introduction | [1] |
| Background | [5] |
| The legislation | [14] |
| Industry regulation of advertisements | [20] |
| Is the decision reviewable? | [23] |
| The meaning of “publishes” | [29] |
| Approach. | [29] |
| Section 199A | [30] |
| “Publishes” | [31] |
| “Publishes” in context of s 199A | [40] |
| “Publishes” in the context of s 197 | [42] |
| Distinction between first publication and continuing publications elsewhere in the Act | [52] |
| Parliamentary materials | [57] |
| Public place | [79] |
| Interpretation consistent with New Zealand Bill of Rights Act 1990 | [85] |
| Is relief appropriate? | [87] |
| Result | [90] |
| Costs | [91] |
The issue before me is the meaning of “publishes” in s 199A of the Electoral Act 1993 (the Act). Under that section a person who “publishes” a statement of fact that he or she knows is false, with the intention of influencing the vote of any elector, commits an offence if they do so at any time on polling day or the two days immediately preceding polling day.
The issue arises in the context of the 2014 general election which was held on 20 September 2014. It concerns two political party advertisements which were available on the internet on 18 and 19 September 2014 and earlier. The particular issue is whether “publishes” means first published in the prohibited period (that is, on polling day or the two preceding days), or whether it includes advertisements which were first published earlier than the prohibited period but which continue to be published during that period.
The issue comes to this court on an application for judicial review brought by the Right Honourable Winston Peters, the Leader of New Zealand First, a party contesting the 2014 election. He made a complaint to the Electoral Commission about the two advertisements, contending that they breached s 199A and that the Commission should refer the matter to the police. The Electoral Commission responded advising that it considered the advertisements did not breach s 199A and it gave reasons for this view.
The Electoral Commission considers that its response to the complaint is not a reviewable decision. 1 If I accept that submission, the parties are content for the Court to consider the issue as though it was before me as an application under the Declaratory Judgments Act 1908.
One of the advertisements that gave rise to this proceeding was a video recorded in Mandarin for Kenneth Wang, the Deputy Leader of the ACT Party, a party also contesting the 2014 election. The video commented on a speech which Mr Peters had made about the opening of a brothel in Auckland owned by the Chow brothers. The commentary in the video was to the effect that Mr Peters was “anti-Chinese” and believed that Chinese people had turned Auckland “evil” and into “the Capital of Sin”. The video was available on the internet on YouTube from 7 September 2014, and also on the ACT Party website from 8 September 2014. It remained on those two sites on 18 and 19 September 2014.
By letter dated 18 September 2014 Mr Henry, counsel for Mr Peters, alerted the Electoral Commission to this advertisement. He provided a signed translation of the video. He set out the relevant parts of Mr Peters' speech and the statements in the video which Mr Peters considered had falsely represented what he had said in that speech. He contended that these statements breached s 199A of the Act. He asked the Electoral Commission to review the material and to refer the advertisement to the Police.
The second advertisement was a pamphlet for the Conservative Party, a party also contesting the 2014 election. This pamphlet compared the policies of the Conservative Party with those of New Zealand First. It was posted to New Zealand households on about 12 September 2014. It was also hosted on the Conservative Party's website from 14 September 2014 and remained there on 18 and 19 September 2014.
A complaint was made to the Advertising Standards Authority (ASA) about the pamphlet. On 18 September 2014 the ASA determined that the pamphlet “contained a substantive error of fact”. This related to a statement that the Conservative Party “would implement the 5 key recommendations of the Law Commission Report” on alcohol reform and the corresponding statement that Mr Peters would not implement them. The ASA noted the correct position was that there were four parts to the Law Commission's report and a substantial number of recommendations. The ASA considered the error was likely to mislead the consumer and breached the Code of Ethics. The complaint was therefore upheld in this respect.
By letter dated 19 September 2014 Mr Henry, on behalf of Mr Peters, wrote to the Electoral Commission about this advertisement. He set out the statement at issue and the ASA's decision about that. He noted that, although the ASA had directed that the advertisement be amended, the pamphlet remained unaltered on the Conservative Party's website as at 19 September 2014. He asked the Electoral Commission to review the advertisement and to refer it to the Police.
The Electoral Commission replied to both letters on 5 November 2014. It said:
In the Electoral Commission's view, putting aside whether or not the other elements of the offence were made out, section 199A of the Act does not apply to the items at issue because they were not first published within the required time period.
In reaching that view the Electoral Commission stated that s 199A was inserted to address a specific concern about parties or candidates publishing false statements on the eve of an election which meant that other candidates and parties had insufficient time to correct the statement. It also said that throughout the Act a distinction was drawn between the act of publication or distribution in the first instance and a continuing publication. Because the Electoral Commission considered the items did not breach s 199A it would not be referring these matters to the police. The letter was signed by the Chief Electoral Officer (Mr Peden).
Mr Henry wrote a further letter to the Electoral Commission dated 14 November 2014 setting out reasons why the Commission's view was not accepted. The Electoral Commission responded by email on 16 December 2014 advising that, if Mr Peters disagreed with the Commission's view, he could refer the matter to the police. He could also make a submission to the Justice and Electoral Select Committee Inquiry into the 2014 general election.
On 16 March 2015 Mr Peters filed this proceeding seeking judicial review. It pleaded that the Electoral Commission's letter of 5 November 2014 was a decision that there was no breach of s 199A. It pleaded that this decision was wrong in law. An order quashing the decision was sought.
The Electoral Act 1993 was enacted in anticipation of the introduction of the mixed member proportional system of representation (MMP) if carried at the referendum to be held alongside the 1993 general election. The Act provided for the reform of the electoral system if that were to occur (as it duly did) and established the Electoral Commission. 2
The Electoral Commission is a crown entity. 3 Its three members, appointed by the Governor-General on the recommendation of the House of Representatives, are the Chief Electoral Officer, the chairperson and the deputy chairperson. 4 Its objectives are as follows:
4C Objective
The objective of the Electoral Commission is to administer the electoral system impartially, efficiently, effectively, and in a way that-
(a) facilitates participation in parliamentary democracy; and
(b) promotes understanding of the electoral system and associated matters; and
(c) maintains confidence in the administration of the electoral system.
Its functions are as follows:
5 Functions
The functions of the Electoral Commission are to-
(a) carry the provisions of this Act into effect:
(b) carry out duties in relation to parliamentary election programmes that are prescribed by Part 6 of the Broadcasting Act 1989:
(c) promote public awareness of electoral matters by means of the conduct of education and information programmes or by other means:
(d) consider and report to the Minister or to the House of Representatives on electoral matters referred to the Electoral Commission by the Minister or the House of Representatives:
(e) make available information to assist parties, candidates, and others to meet their statutory obligations in respect of electoral matters administered by the Electoral Commission:
(f) carry out any other functions or duties conferred on the Electoral Commission by or under any other enactment.
Part 6 of the Act is concerned with the election process from the issue of the writ, to nominations for electoral districts, the voting process, the counting of votes, the endorsement and return of the writ and determining the list seats. It also provides a number of election offences. These include a number of prohibitions on what can be done on polling day, which come under the heading “interfering with or influencing voters”. 5 These prohibitions include, for example, conducting a public opinion poll. They also include a prohibition on statements made on polling day intended to influence a voter. 6 Part 6 of the Act also includes the offence at issue here, namely publishing false statements on polling day or...
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