Greenpeace of New Zealand Inc v Electoral Commission
[2014] NZHC 2135
•8 September 2014
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IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CIV-2014-485-8997 [2014] NZHC 2135
BETWEEN GREENPEACE OF NEW ZEALAND INCORPORATED
Plaintiff
AND
ELECTORAL COMMISSION Defendant
CIV-2014-485-8998 BETWEEN
GREENPEACE OF NEW ZEALAND INCORPORATED, 350 AOTEAROA, WORLDWIDE FUND FOR NATURE NEW ZEALAND, ROYAL FOREST
AND BIRD PROTECTION SOCIETY OF NEW ZEALAND INCORPORATED, GENERATION ZERO
INCORPORATED, OXFAM NEW ZEALAND
Plaintiff
AND
ELECTORAL COMMISSION Defendant
Hearing: 19 August 2014 Appearances:
M Palmer QC and E Nilsson for Plaintiff (CIV-2014-485-8997) I Hikaka and D Bullock for Plaintiffs (CIV-2014-485-8998)
P Gunn and S Humphrey for Defendant
Judgment:
8 September 2014
JUDGMENT OF MANDER J
GREENPEACE OF NEW ZEALAND INCORPORATED & ORS v ELECTORAL COMMISSION [2014] NZHC 2135 [8 September 2014]
[1] Greenpeace of New Zealand Incorporated (Greenpeace) and a group of other non-governmental organisations (Climate Voter organisations) seek declarations that websites and other related material are not election advertisements for the purposes of s 3A of the Electoral Act 1993 (the Act).
[2] In June 2014 these non-government organisations1 commenced a campaign known as “Climate Voter” (Climate Voter campaign). This involved the launch of a website (Climate Voter website) and included the publication on their respective Facebook websites of images promoting the Climate Voter campaign and the printing of stickers containing the text “Climate Voter” (Climate Voter materials).
[3] In December 2013, Greenpeace launched a website, bridges.co.nz (Simon Bridges website). This site displayed what appears to be the official website of the Member of Parliament for Tauranga, and Minister of the Crown, the Honourable Mr Simon Bridges (Mr Bridges). However the browser window becomes increasingly obscured by a rising black substance. Ultimately all that is visible is a Greenpeace logo and a short message relating to the issue of deep ocean exploratory oil drilling.
[4] The Electoral Commission (the Commission) has responsibility for administering Parliamentary elections and referenda. It advised Greenpeace and the organisers of the Climate Voter campaign that both the Climate Voter website and the Simon Bridges website are election advertisements for the purposes of the Act. Greenpeace and the Climate Voter organisations are therefore, in the Commission’s view, subject to the Act’s regulation.
[5] Greenpeace and the Climate Voter organisations disagree with the Commission’s view. They consider themselves to be non-partisan and politically independent issues-based advocacy organisations. They do not want to be subject to
the type of expenditure restrictions or registration and associated obligations
1 The six joint organisers of the campaign are Greenpeace of New Zealand Incorporated; 350
Aotearoa, Worldwide fund for Nature New Zealand; the Royal Forest and Bird Protection
Society of New Zealand Incorporated; Generation Zero Incorporated; and Oxfam New Zealand.
imposed by the Act, which would result from being held to have published election advertisements.
[6] The Commission, by convention as a quasi-judicial decision maker, does not ordinarily actively participate in judicial review of its decisions. In the absence of a contradictor however, and having regard to the nature of the issues raised by these proceedings, the Court has received full written and oral submissions from it, effectively in opposition to the applications for declaratory relief.
The Climate Voter campaign
[7] The Climate Voter website invites visitors to “sign on” as a “Climate Voter”. The homepage of the website, a screenshot of which is attached to this judgment, states:
Being a Climate Voter means you care about climate change and you want all political parties to do something about it. It means you want real action on climate change and you’re prepared to use your vote to get it. It says you support strategies to rapidly phase out fossil fuels and grow New Zealand’s clean energy and low-carbon potential.
Climate Voter is a non-partisan initiative powered by an alliance of New Zealand organisations. It aims to empower climate concerned citizens to use their vote in the September 2014 election to make a difference for the good of present and future generations.
[8] The home page then advises that in the lead up to the election political parties will be asked where they stand on what are described as key elements of climate related policy with a Climate Voter question of the week. Reference is made to the hosting of a live debate between all major political parties closer to the election day, inviting the parties to convince the climate voters “that their party will take real action on climate change”.
[9] The website also contains a separate “live updates” page which contains a Twitter feed which links to the Climate Voter Twitter account “@ClimateVoterNZ”. This page presents as a list of tweets and re-tweets from the “@ClimateVoterNZ” account.
[10] On the Climate Voter affiliate organisations’ Facebook pages are images which match the Climate Voter branding. These images depict a montage of pictures, some of individuals who have declared themselves to be “Climate Voters” together with statements regarding climate change and the issues related to that subject.
[11] There are also bumper stickers which contain the bold text “Climate Voter”
and feature logos of the organisations involved without any additional comment.
The Simon Bridges website
[12] The Simon Bridges website forms part of Greenpeace’s wider campaign regarding the conservation of marine ecosystems for which it is well-known. A screenshot of the website is attached to this judgment. Mr Bridges is the current Minister of Energy and Resources and is responsible for the granting of prospecting permits. Of concern to Greenpeace is oil and mineral prospecting within New Zealand’s Exclusive Economic Zone and continental shelf, including deep sea oil drilling.
[13] The website was launched on 6 December 2013, some three months prior to the formal announcement of the election date, and some nine months before polling day (20 September 2014). The website identifies Mr Bridges and his affiliation to the National Party, the logo of which forms part of the banner at the top of what appears to be his official site. The website makes no reference to the election. The effect of the website is as previously described. After the browser window is completely obscured by an animation of the rising black substance, which represents oil, a Greenpeace logo is displayed directing viewers to another page concerning deep sea drilling issues. The message reads:
This was just a bit of fun, but a real oil spill wouldn’t be.
Drilling rights in the very deep ocean surrounding New Zealand are being sold off to big oil companies.
Exploratory drilling has already begun. Find out more at oilspillmap.org.nz.
[14] Greenpeace advise that the website was not connected to the 2014 election but was part of a current campaign intended to criticise the Minister’s performance and raise public awareness of conservation issues connected with oil exploration.
The issues
[15] In considering the applications for declarations that the Climate Voter website and associated materials, and the Simon Bridges website are not election advertisements, I am required to examine the meaning of “election advertisement” as defined by s 3A(1) of the Act. Secondly, in relation to the Simon Bridge’s website two additional issues require consideration:
(a) Whether the term “individual” in s 3A(2)(e) of the Act, which excludes particular advertisements from the statutory definition of election advertisement extends to include legal persons as contended for by Greenpeace.
(b)Whether a publication which might not otherwise be considered an election advertisement can be so classified upon the calling of an election.
Thirdly, whether the two websites and the Climate Voter materials are election advertisements, and whether in the exercise of the Court’s discretion the making of declaratory orders is appropriate.
The meaning of election advertisement
[16] Section 3A(1) of the Act provides as follows:
3A Meaning of election advertisement
(1) In this Act, election advertisement—
(a) means an advertisement in any medium that may reasonably be regarded as encouraging or persuading voters to do either or both of the following:
(i) to vote, or not to vote, for a type of candidate described or indicated by reference to views or
positions that are, or are not, held or taken (whether or not the name of the candidate is stated):
(ii) to vote, or not to vote, for a type of party described or indicated by reference to views or positions that are, or are not, held or taken (whether or not the name of the party is stated); and
(b) includes—
(i) a candidate advertisement; and
(ii) a party advertisement.
[17] The meaning of an enactment is to be ascertained from its text and in light of its purpose.2 In ascertaining meaning other indications may be taken into account including context, explanatory materials and the organisation and format of the enactment itself.3 The orthodox and established approach to statutory interpretation was summarised by Tipping J in Commerce Commission v Fonterra Co-operative Group Ltd,4 in the following terms:5
The meaning of an enactment must be ascertained from its text and in light of its purpose. Even if the meaning of the text may appear plain in isolation of purpose, that meaning should always be cross checked against purpose in order to observe the dual requirements of s 5. In determining purpose the Court must obviously have regard to both the immediate and the general legislative context. Of relevance too may be the social, commercial or other objective of the enactment.
(Citations omitted)
[18] The Commission acknowledges that the Act’s regulation of election advertisements impinges on the right to freedom of expression guaranteed by s 14 of the New Zealand Bill of Rights Act 1990. The question of the ambit of the statutory definition of election advertisement necessarily therefore engages an issue of interpretation to which the Bill of Rights Act has application. The parties are agreed
that the approach summarised by Tipping J in R v Hansen6 provides the appropriate
means by which the issue of interpretation should be resolved.
2 Interpretation Act 1999, s 5(1).
3 Section 5(2) and (3).
4 Commerce Commission v Fonterra Co-operative Group Ltd [2007] NZSC 36, [2007] NZLR
767.
5 At [22].
6 R v Hansen, [2007] NZSC 7, [2007] 3 NZLR 1 at [92].
[19] The initial interpretation exercise requires the application of all relevant construction principles as previously mentioned. It also includes a recognition that in undertaking that task a meaning “should not lightly be attributed to Parliament” which is inconsistent with the rights and freedoms affirmed by the Bill of Rights Act.7 Before embarking on that exercise it is worthwhile articulating the respective positions of the parties regarding the purpose of s 3A(1) of the Act.
The essence of the contest
[20] Greenpeace and the Climate Voter organisations argue that the objective test contained in the statutory definition of election advertisement was intended as an adjunct to the regulation of advertising by candidates and parties. The purpose of regulating these third party promoters was to ensure shadow or front organisations could not advocate for the election of candidates and parties. In essence, the extension of regulation to third party promoters was an “anti-avoidance” measure which was not designed to capture issue advocacy, of which the Climate Voter website and associated materials and the Simon Bridges website are examples.
[21] In the absence of it being plain and apparent from the advertisement as to which party or candidate is being supported or opposed, it is submitted organisations like Greenpeace and the other groups involved in the Climate Voter campaign were not intended to be the subject of statutory regulation. Greenpeace and the Climate Voter organisations submit Parliament did not intend s 3A(1) of the Act to have application to issue advocacy and that the definition requires the support or opposition of a party or candidate to be clear on the face of the advertisement.
[22] The Commission however submits that the legislative purpose was to provide an equal playing field and promote participant equality to ensure fair elections. Regulation of third party participation was intended as a parallel objective to regulating the activities of parties and candidates, lest third party voices drowned out the primary voices of the principal actors in elections, namely candidates and parties. The Commission submits the objective test contained in the definition of election
advertisement explicitly seeks to regulate activity which encourages or persuades
7 At [89].
voters by reference to views or positions that are or are not held by a type of candidate or party.
[23] In extending the Act’s regulation to third parties, Parliament chose to do so by reference to whether, objectively viewed, a publication had the effect of encouraging or persuading voters to vote for a type of candidate or party described or “indicated” by reference to views or positions held. It was therefore contemplated that some forms of issue advocacy may be captured by the definition of election advertisement. If that was the objective effect of the publication, that result was consistent with Parliament’s purpose to achieve a fair playing field for those participating in the election.
Meaning of “advertisement”
[24] Advertisement is not the subject of statutory definition. Both parties referred to the Oxford Online Dictionary to determine the natural and ordinary meaning of the term. It defines “advertisement” as:
A notice or announcement in a public medium promoting a product, service, or event or publicising a job vacancy.
[25] Greenpeace and the Climate Voter organisations submitted that essential to the definition was both its public dissemination and the promotion of particular conduct. In the absence of the publication promoting particular conduct it is not capable of being an advertisement. Parliament, by using the term advertisement, contemplated that the publication was capable of falling into that category of material which urged a particular course of conduct or action on the part of the reader, viewer or listener, and that this was a prerequisite required to be established before examining whether the publication may reasonably be regarded as having such an effect.
[26] The Commission argues that in the context of the definition contained in s 3A(1)(a) it is sufficient that the publication constitutes a notice or announcement in a public medium without more. To require the term “advertisement” as promoting particular conduct, it was submitted, does not sit well with the wider scheme of s 3A(1) which applies an objective test as to whether the advertisement in question
encourages or persuades voters. The Commission relies upon the suggested interpretation by Professor Geddis: “The action of making known to the public”.8
[27] Whether the term “advertisement” as used in s 3A(1)(a) requires the promotion of particular conduct, or is of more neutral effect, appears, at least at first blush, to be of little significance. The statutory definition requires the “advertisement” to be one that “may reasonably be regarded as encouraging or persuading voters” to vote or not to vote for or against a type of candidate or party. If the publication in question has that effect, arguably it must be promoting some form of conduct and therefore can be an advertisement both in the sense contended for by the Commission and by Greenpeace and the Climate Voter organisations.
[28] It was not explicitly articulated in argument by Greenpeace and the Climate Voter organisations that a publication which may reasonably be regarded as encouraging or persuading voters, in the sense of promoting voter conduct, could not, without more, be an advertisement. If this implicit argument however was accepted, it would render the objective test contained in s 3A(1), if not redundant, at least secondary to the undefined meaning of the term “advertisement”, when the focus of the subsection is the test contained within it. It would require an artificial and, in my view, imperceptible distinction to be drawn between a publication which promotes conduct and one that encourages or persuades voters to vote in a particular way. The latter is simply a subset or example of the former. The objective test contained in the definition of whether something can “reasonably be regarded” as persuading or encouraging is equally applicable to gauging whether a publication can be categorised as an advertisement in the terms contended for by Greenpeace and the Climate Voter organisations.
[29] Greenpeace and the Climate Voter organisations submit however that the narrowed meaning of “advertisement” provides greater precision and certainty to the type of publication intended to be caught by the definition. The use of the term “advertisement” in its more confined sense is relevant, in their submission, to
whether Parliament intended the encouragement or persuasion to be explicit or
8 Andrew Geddis Electoral Law in New Zealand: Practice and Policy (2nd ed, LexisNexis, Wellington, 2014) at 141.
apparent on the face of the publication before it may reasonably be regarded as having that effect. This is the interpretation of s 3A they contend for. Greenpeace and the Climate Voter organisations submit the scheme of the Act and the legislative history support that approach, whereas the Commission argues to the contrary.
The Electoral Act 1993
[30] The rules governing Election advertising are to be found in Part 6AA of the Act. Section 204B limits the classes of persons who may promote election advertisements to a party secretary, a candidate, a registered promoter or an unregistered promoter who does not incur advertising expenses exceeding $12,300. A person who wilfully promotes an election advertisement without being entitled to
do so is guilty of an illegal practice9 and is liable on conviction to a maximum fine of
$40,000.10 A person who publishes or causes to have published an election advertisement must include in the advertisement a promoter statement.11 Failure to do so constitutes an illegal practice.12
[31] An unregistered promoter is under a three year obligation after polling day to take reasonable steps to retain records and accounts to enable verification of advertising expenses. Failure to do so is also an offence for which the promoter is liable to a maximum fine of $40,000.13
[32] Restrictions on spending limits on election advertisements apply to the three month period prior to polling day (the regulated period).14 The definition of “election advertisement” and the restrictions on who may promote such publications however are not so limited and apply outside the regulated period. A promoter of an election advertisement who wishes to incur advertising expenses exceeding $12,300 must apply to be a registered promoter.15 At the relevant time, a registered promoter
was permitted to spend up to $308,000 within the regulated period on advertising
9 Electoral Act 1993, s 204B(3).
10 Section 224.
11 Section 204F.
12 Section 204F(7).
13 Section 204E.
14 Section 3B.
15 Section 204L.
expenses.16 Breaches of that spending limit renders a person guilty of a corrupt or illegal practice and liable to a maximum fine of $40,000 or $100,000 depending on the nature of the breach.17
[33] A promoter required to be registered on the Commission’s register must provide stipulated details for the purpose of enabling the public, which may search the register, to ascertain whether an election advertisement is promoted by a registered promoter.18 Compliance obligations that attach to the expenditure of a registered promoter include the issuing of invoices and the keeping of receipts for election expenses. A return is required to be filed if expenses exceed $100,000 which may be the subject of audit in certain circumstances.19
[34] The Act distinguishes between three types of advertisement. A candidate advertisement is defined in the following terms:20
candidate advertisement means an advertisement in any medium that may reasonably be regarded as encouraging or persuading voters to do either or both of the following:
(a) to vote for a constituency candidate (whether or not the name of the candidate is stated):
(b) not to vote for a constituency candidate (whether or not the name of the candidate is stated)
A party advertisement is described as follows:21
party advertisement means an advertisement in any medium that may reasonably be regarded as encouraging or persuading voters to do either or both of the following:
(a) to vote for a party (whether or not the name of the party is stated):
(b) not to vote for a party (whether or not the name of the party is stated)
[35] The definition of election advertisement contained in s 3A(1) is inclusive of a candidate and party advertisement22 and extends the regulation of advertising to third
16 Section 206V.
17 Sections 206X and 224.
18 Sections 240R-240W.
19 Sections 206ZB-206ZD.
20 Section 3(1).
21 Section 3(1).
parties who must either be an unregulated or regulated promoter. The definition seeks to encompass the encouragement or persuasion by a third party of voting conduct in respect of a candidate or party. It extends the objective test to a type of candidate or party by reference to views or positions that are or are not held or taken by a candidate or party whether or not the name of that candidate or party is stated.
[36] Section 3A(2) lists a number of advertisements that are not election advertisements. These include publications by the Electoral Commission itself, contact information published by a Member of Parliament, editorial content in the media, the transmission of proceedings of the House of Representatives, and publication on the internet or other electronic medium of personal political views by an individual.
Legislative history
[37] Both parties rely on the legislative history of s 3A to support their respective interpretation of the provision and is worthy of review.
[38] Section 211 of the Act originally regulated advertisements for candidates and political parties. The provision did not extend to capture any form of issue advocacy nor negative campaigning. It referred only to the promotion, procurement, encouragement or persuasion to vote for a candidate or party.23
[39] In the lead-up to the 2005 election, the Exclusive Brethren conducted a sustained campaign against the incumbent government. One million dollars was spent on materials which, while not referring to any party by name, did refer to policies and encouraged voters to “change the government”. This conduct represented an unprecedented degree of third party involvement in a New Zealand election campaign.24
[40] Following the 2005 election, and as a result of concern arising from wealthy interest groups potentially having a disproportionate influence on the outcome of an
22 Section 3A(1)(b).
23 Andrew Geddis and Caroline Morris “Major, Minor, and Third Parties in the 2005 Election”
[2005] NZLJ 377 at 378.
24 Geddis, above n 8, at 138.
election, the Electoral Finance Bill 2007 was introduced into the House.25 Clause 5 of the Bill provided a definition of electoral advertisement. Relevantly, it provided as follows:
5 Meaning of election advertisement
(1) In this Act, election advertisement-
(a) means any form of words or graphics, or both, that can reasonably be regarded as doing 1 or more of the following:
(i) encouraging or persuading voters to vote, or not to vote, for 1 or more specified parties or for 1 or more candidates or for any combination of such parties and candidates:
(ii) encouraging or persuading voters to vote, or not to vote, for a type of party of for a type of candidate that is described or indicated by reference to views, positions, or policies that are or are not held, taken, or pursued (whether or not the name of a party or the name of a candidate is stated); and
(iii) taking a position on a proposition with which 1 or more parties or 1 or more candidates is associated; and
…
[41] Before the Justice and Electoral Select Committee (the Committee) concern was raised regarding the broad effect of the proposed definition, and in particular cl
5(1)(a)(iii) which appeared to capture issue advocacy. As a result, the Committee recommended the Bill be amended and the subclause omitted. In its report, the Committee stated:26
We consider that the definition in the Bill as introduced is too broad and confusing. As it is drafted, election advertisement includes any form or words or graphics that can reasonably be regarded as taking a position on which a party or candidate has taken a position. We sympathise with issues- based organisations who pointed out that they may be captured by this definition, and so would have to list under the legislation as third parties, since their work routinely involves “taking a position on a proposition with which one or more parties or one or more candidates is associated”, even though their intention is to raise public awareness of particular issues rather than to influence voting for or against particular parties or candidates.
…
25 Introductory speech, Minister of Justice, Hon Mark Burton (26 July 2007) 640 NZPD 10775.
We consider the Bill is not intended to capture all issues-based advertising and promotions without exception, and recommend the deletion of these subclauses to make this clear.
[42] Earlier, the Committee observed:
… We recommend changes to that definition so that it does not affect the issues-based related advocacy that non-governmental organisations (NGOs) carry out.
Where NGOs do decide to engage directly in activity that promotes or opposes a candidate, party, or combination of candidates or parties, the expenditure limits to which they will be subject have been increased substantially.
[43] The changes made by the Committee were considered by Members of Parliament at the second reading of the Bill. The second reading speech of Government MP Lynne Pillay, expressed the following view:27
This Bill will not destroy free speech. It will not stop people from expressing their views or particularly from lobbying on issues. By amending the definition of “election advertisement” we can ensure that people can lobby on issues unfettered, and we think this is really important…
…
As I said before, narrowing the definition of “election advertising” by deleting clause 5(1)(a)(iii) of the original Bill means that the advertising of issues will not be captured and that many lobby groups and advocacy groups can go about their business, which we admire and respect in our country. Only advertising that advocates for or against political parties or candidates will be captured by this Bill.
[44] Another Government MP, Charles Cheval, during the second reading debate stated in reference to the deletion of cl 5(1)(a)(iii):28
…This clarifies that taking a stand on issues as opposed to advocating for a party or candidate, will not fall under the definition of “election advertisement” for the purposes of this Bill. Any personal organisation will remain free to say whatever they like about any matter, it is only when they enter into advocacy for or against a party or candidate… that their actions or expressions will be regulated.
Again, in reference to the deleted clause, Mr Cheval’s speech continued:
27 (22 November 2007) 643 NZPD 13385.
… It is now abundantly clear that taking a stand on the issues will not fall under the definition of “election advertisement” for the purpose of the legislation.
Let us make this point perfectly clear: the Bill does not limit anyone’s right to comment on the issues. It is only where people seek to advocate for a vote or against a candidate or a party or a combination that the law will intervene.
[45] The Select Committee’s recommendations were accepted and the definition as amended became s 5 of the Electoral Finance Act 2007. The wording of s 5(1)(a)(ii) has endured and is to be found in its latest iteration in s 3A(1)(a) of the Act.
Parliament’s intended meaning
[46] Greenpeace and the Climate Voter organisations submit that the definition of “election advertisement” and the regulation contained in Part 6AA was intended to be confined to advocacy for or against particular parties and candidates contesting the election. Section 3A(1) was not intended to cover issues-based advocacy. I accept Parliament was concerned to avoid the definition of election advertisement extending to include issues-based advocacy. That is illustrated by the amendment to cl 5 of the Electoral Finance Bill recommended by the Select Committee. The provision was intended only to have application to an organisation that enters into advocacy for or against a party or candidate.
[47] Section 3A(1) was not intended to capture the advertising of issues per se or the promotion of a third party’s favoured position in respect of an issue. The offending part of the proposed definition in cl 5 of the Electoral Finance Bill, whereby taking a position on a proposition with which one or more parties or candidates were associated was specifically removed in order to ensure that organisations remained free to take a stand on issues of concern to them, notwithstanding the presence of a looming election. It is therefore clear that communicating a stance or position without more, albeit in respect of an issue which a party or candidate may have an association, cannot of itself, by any objective measure, be regarded as encouraging or persuading voters to vote for a candidate or party or a type of candidate or party.
[48] Greenpeace and the Climate Voter organisations’ submit the encouragement or discouragement to vote for or against a type of candidate or party must be apparent on the face of the publication . That is linked to the original proposition that the definition of “advertisement” intrinsically requires the promotion of particular conduct. When placed against its legislative history, it must be objectively apparent on the face of the advertisement which candidate, party or blocks of candidates or parties the advertisement supports or opposes. It is submitted that in the absence of such a requirement the limits of the statutory test will be vague and the application of the definition in any given situation uncertain. Greenpeace and the Climate Voter organisations highlight the consequences of breach which may involve findings of illegal and corrupt practice and the commission of offences which may attract substantial fines. The law should therefore be clear. In seeking to place a more restricted interpretation on s 3A(1)(a) they emphasised a need that the publication provide sufficient particulars of the relevant “views or positions” of the parties or candidates with which the publication was concerned.
[49] The Commission emphasised that the statutory definition contemplates there being a continuum along which at some point an organisation’s publication may reasonably be regarded as encouraging or persuading voters to vote or not to vote for a type of candidate or party. The identification of a candidate or party need only be indicated by reference to views or positions that are or are not held or taken by that type of candidate or party. The Commission submits that the broadness of the application of the definition which might otherwise be considered objectionable has been sufficiently limited. Firstly, it points to the removal of cl 5(1)(a)(iii) contained in the original version of the Electoral Finance Bill 2007 and, secondly, to the objective test required by the definition, that the publication be able to be reasonably regarded as having the stated effect.
[50] The parties’ competing contentions as to whether the publication itself must be more than a notice or announcement, or must promote some form of conduct does not, in my view, advance the issue. Whether a publication is caught by the definition depends on the particular effect of the material. I accept that Parliament’s use of the term “advertisement” rather than “publication” may be an indicator which favours a requirement that the effect of the material to encourage or persuade needs to be clear.
I am not sure however whether that adds any gloss on what is plain from the text of the statutory definition, that the publication be capable of being “reasonably regarded” as encouraging or persuading. Such an assessment must therefore be one which is reasonably capable of being reached on an objective basis.
[51] The words “on its face” in my view add little value in terms of providing greater certainty or clarity around the definition’s application. If it is a reference to the publication needing to be explicit rather than implicit then in my view Parliament’s clear intention was for the effect of the advertisement to be determinative of whether it fell within the Act’s purview, not whether the message was express or implied. If the publication provides insufficient particulars of the relevant “views or positions” it may well be that the advertisement cannot objectively be held to sufficiently identify the type of candidates or parties and the advertisement is nothing more than the communication of a position on an issue, albeit one which a party or candidate may be associated. Likewise, if the objective viewer of the publication cannot discern which parties or candidates or type thereof the publication favours or disfavours, the statutory test is not engaged. In my view such considerations are already integral to the application of the statutory definition and relevant to the objective assessment of whether the test is met in any given instance.
[52] The application of such nomenclature as “issue advocacy” also does little to confine or clarify the boundaries of the statutory test. The definition does not require the candidate or the party to be named in the advertisement. Further, the definition itself contemplates encouragement or persuasion to vote in a particular way which is manifested by identification of a type of party or candidate described or indicated by reference to the candidates or parties views or positions – by their views or positions “you will know them”. Necessarily therefore the advertisements will be focussed on particular policies and issues against which a type of candidate or party will be either favoured or not favoured. That the advertisement is capable of being categorised as issue advocacy or a form thereof is secondary to the objective test which Parliament requires to be applied to the material in question.
[53] I have already accepted that a publication which advocates for a particular stance or position on an issue is insufficient of itself to meet the s 3A(1)(a) test. Simply because the public (as opposed to the advertiser) is able to juxtapose that message against what may be the well-known position of a candidate or party is not enough. That was the clear intent of Parliament in discarding cl 5(1)(a)(iii) of the Electoral Finance Bill 2007.
[54] Greenpeace and the Climate Voter organisations’ submission that the statutory definition was not intended to regulate issues-based advocacy but only advocacy for or against parties or candidates is undoubtedly accurate. I have little doubt this was Parliament’s intent, but the distinction between issues-based advocacy and encouragement to vote for a type of candidate or party according to particular views or positions inevitably merges at some point. Section 3A(1)(a) seeks to draw that line and give effect to that distinction. In drawing that line, Greenpeace and the Climate Voter organisations submit that in order to achieve a rights-consistent interpretation, which Parliament ought not be willing to lightly depart from, it must be objectively apparent on the face of the advertisement the candidates or type of candidates or parties the advertisement supports or opposes. For that to be achieved in any given instance, the “views or positions” of the candidate or party and those of the advertiser must, with some degree of specificity, be plain from the advertisement.
[55] In amplification of that approach it is suggested that an advertisement that encourages voters to consider an issue and provides information on that issue about the respective policies of candidates or parties without more cannot objectively meet the test of encouraging or persuading voters for or against candidates or parties, either independently or of a particular type. As a starting proposition, I accept that approach has merit, however the categorisation of each case will turn on its individual facts and circumstances. There will be a considerably different effect between an established media organisation identifying an issue and publishing the details of a parties’ policies or positions in respect of that issue and that of a pressure group strongly identified with a particular cause publishing material which allows the public to measure the degree of alignment of the parties and candidates positions with the pressure group’s known viewpoint.
[56] Whether in any given instance across such a spectrum the statutory test will be made out will be a matter of circumstance and degree which will include considerations of the content and language of the publication, the timing of the publication, the profile and known position of the advertiser on the issue framed in the publication, and the ultimate overall effect of the publication in question.
[57] For the reasons already canvassed, the type of bright line contended for by Greenpeace and the Climate Voter organisations in my view is not able to be applied to the statutory definition to limit the test for election advertisement. It may be that an organisation that does no more than publish the respective positions of parties and candidates on identified issues cannot upon an objective assessment reasonably be regarded as encouraging or persuading voters to vote for or against a type of candidate. Whether that is so will depend on an assessment of the individual publication having regard to its overall effect upon application of the statutory test.
[58] It is to be remembered that the statutory definition seeks to avoid potential disparities in election-related spending which may pose dangers to fair elections and seeks to achieve the legitimate aim of providing transparency and fairness in election campaigns. Section 12 of the New Zealand Bill of Rights Act 1990 expressly provides for the right to vote in genuine periodic elections of Members of the House of Representatives. Parliament has sought to achieve a balance between these valued parts of our constitution.
[59] In imposing a test that an advertisement be “reasonably” regarded as having the particular prescribed effect, Parliament requires an objective threshold to be met. Mindful that finding the test established inevitably involves a restriction on the right to freedom of expression, it must have been Parliament’s intention that the criteria would only be met in circumstances that would be readily evident to the external indifferent eye. It is the test provided in the statutory definition that is to be applied, one that is dependent on an objective assessment of the effect of the publication. For it to be qualified in the manner advocated by Greenpeace and the Climate Voter organisations is not, in my view, a reasonably tenable interpretation of the words of the provision, nor would it be consistent with Parliament’s intention in framing the test in such terms.
[60] I am satisfied that the only available interpretation of Parliament’s intention was to provide an objective test which in certain circumstances may catch what is considered to be issues advocacy as a result of the ultimate effect of the particular publication. That the advertisement is not overt or express as to the type of candidate or parties it seeks to support or oppose was not intended to be determinative. The overall effect of the advertisement was the intended focus.
Is the meaning apparently inconsistent with s 14?
[61] Section 3A and Part 6AA of the Act seeks to regulate the way people and organisations engage in political discourse. The effect of these provisions is to impose limitations on the manner and content of expression directed towards the election of candidates and the casting of votes for or against political parties. It restricts the way in which that expression is to be conducted and the resourcing of that communication.
[62] The Commission accepts that the definition contained in s 3A infringes on the right to freedom of expression. Both the Climate Voter website and materials and the Simon Bridges website amount to expressive conduct which is of particularly high value, representing political speech that is directly associated with a functioning democracy. The right to engage in political debate and impart and receive political expressions lies at the very heart of liberal democracy.
Is the apparent inconsistency a justified limit?
[63] With the s 3A(1) definition being recognised as inconsistent with s 14 of the New Zealand Bill of Rights Act (NZBORA), the Court must examine whether the limitation of the right is demonstrably justified in a free and democratic society.29 In examining that issue the following issues require examination:
(a) Whether the limiting measure serves a sufficiently important purpose to justify curtailing the right of freedom of expression.
29 New Zealand Bill of Rights Act 1990, s 5.
(b)Whether the limitation measure in s 3A(1) is rationally connected with its objective.
(c) Does s 3A(1) impair the right no more than is necessary to achieve its purpose and is the limiting measure proportionate to what it seeks to achieve?
[64] In examining these questions the Commission submits that some latitude must be given to Parliament’s choice of means to achieve its objective.30 In R v Hansen, Tipping J acknowledged that “major political decisions will be at the more deferential end of the spectrum whereas matters with more of a substantial legal content will be at the other.”31 The Commission refers to the observations of Bastarache J for the majority in the judgment of the Supreme Court of Canada in Harper v Canada,32 where in the context of a contest between electoral law and freedom of expression his Honour stated:33
… the legislature’s objective, namely to enhance the exercise of the right to vote, must be borne in mind. Thus, while the impugned provisions do in a way restrict one of the most basic forms of expression, namely political expression, the legislature must be accorded a certain deference to enable it to arbitrate between the democratic values of freedom of expression and referendum fairness. The latter is related to the very values the Canadian Charter seeks to protect, in particular the political equality of citizens that is at the heart of a free and democratic society. The impugned provisions impose a balance between the financial resources available to the proponents of each option in order to ensure that the vote by the people will be free and informed and that the disclosure of each option can be heard. To attain this objective, the legislature had to try to strike a balance between absolute freedom of individual expression and equality among the different expressions for the benefit of all. From this point of view, the impugned provisions are therefore not purely restrictive of freedom of expression. Their primary purpose is to promote political expression by ensuring an equal dissemination of points of view and thereby truly respecting democratic traditions.
[65] To the contrary, Greenpeace and the Climate Voter organisations emphasise that which I have already acknowledged; that the limitation is on political expression
which is deserving of a high standard of constitutional protection.34 It is submitted
30 R v Hansen, above n4, at [111] per Tipping J.
31 At [116].
32 Harper v Canada [2004] 1 SCR 827.
33 At [61].
34 See Libman v Quebec (Attorney-General) [1997] 3 SCR 569 at [60].
that the importance of political expression justifies intensive scrutiny when undertaking the statutory interpretation inquiry.
[66] I have acknowledged the high value that attaches to political speech which must always be a consideration that is to the fore. What is sought to be achieved by the legislation is a balance between freedom of political expression and electoral fairness. The Commission highlights the bipartisan nature of the 2010 Electoral reforms of which the statutory test relating to third party advertisements is a part. While that is worthy of acknowledgment, it is the third parties’ freedom of expression which is being curtailed. In the contest of ideas in the period leading up to an election it is the discussion of particular issues of interest to those third parties which is potentially being restricted.
[67] I acknowledge that the limitation imposed is part of the endeavour to promote fair and balanced political discourse and protect the integrity of the election process. In that context the value of the speech is arguably enhanced and the risk of legitimate expression being overwhelmed or drowned out reduced. Insofar as the legislation sought to advance that objective by setting levels on expenditure and requirements of transparency, I accept some level of deference is required to be exercised.
(a) Does the limiting measure secure a sufficiently important purpose to justify limiting freedom of expression?
[68] The purpose sought to be achieved by s 3A(1) has already been canvassed. The objective of Parliament to preserve the integrity of the electoral system and provide a “level playing field” must be acknowledged as justifying some curtailment of freedom of expression. It has even been interpreted as an attempt to indirectly preserve the free flow of information as was argued by the Commission.35 Whether that is the case, such limiting provisions have long been acknowledged as a necessary part of electoral law to preserve and enhance free and fair elections.
Greenpeace and the Climate Voter organisations did not argue otherwise.
35 Brooker v Police [2007] NZSC 30, [2007] 3 NZLR 91 at [235]-[237] per Thomas J.
(b) Is the statutory definition rationally connected with the achievement of that acknowledged objective?
[69] I accept the Commission’s submission that the provision provides a rational means to discriminate between publications which assessed objectively by their effect encourage or persuade voters to vote for or against a type of candidate or party and those that do not. The statutory test seeks to distinguish between publications that should be subject to regulation and those for which there is no demonstrable justification for regulation.
(c)Does s 3A(1) impair freedom of expression no further than is necessary to achieve its purpose and is the limiting measure proportionate to what it seeks to achieve?
[70] The obligations which attach to those who publish an election advertisement, insofar as they are relevant to the publications the subject of the present proceedings, are not onerous. All election advertisements must include a promoter statement.36
Promoters of election advertisements are subject to spending limits on
advertisements promoted during the “regulated period”. If a promoter spends up to
$12,300 during the regulated period,37 they are regarded as an unregistered promoter. An unregistered promoter must take reasonable steps to retain records and accounts which are necessary to enable verification of advertising expenses.38 A promoter who spends over $12,300 during the regulated period must register with the Commission.39 Registered promoters may spend a maximum of $308,000 on election expenses during the regulated period.40 Registered promoters are obliged to keep invoices and receipts for election expenses which exceed $50,41 and, additionally, if they spend over $100,000 they must file a return of election expenses with the Commission following the election which may be the subject of audit.42
[71] Of concern to Greenpeace and the Climate Voter organisations is that the
definition of “election advertisement” applies even outside the regulated period. The
36 Electoral Act 1993, s 204F.
37 Section 204B(1)(d).
38 Section 204E.
39 Sections 204B(1)(c)-(d) and 204K-204L.
40 Section 206V.
41 Section 206S(1).
42 Section 206V.
Commission however submits that outside the regulated period the only requirement that is triggered is the need for the promoter of an election advertisement to attach a promoter’s statement. Further, that the objective test, relating as it does to encouragement or persuasion to vote for or against a party or candidate will limit the application of the definition to those publications which do not have some temporal connection with an election. The statutory definition provides an exhaustive list of exceptions, excluding the publication of editorial content by the media and the publication of personal political views by individuals online, amongst others. These exceptions qualify the application of s 3A(1)(a) and provide necessary limitations on what would otherwise encompass forms of expression which could not possibly be reasonably justified.
Overseas case law
[72] Reference was made by the parties to overseas jurisprudence which considered similar issues regarding the interrelationship between freedom of expression and limitations on election advertising. Mr Palmer QC who appeared on behalf of the non-governmental organisations acknowledged that, having regard to the particular statutory framework with which the cases are concerned, they are of little assistance. Insofar as they were relied upon by Greenpeace and the Climate Voter organisations, what parallels could be drawn with the approach taken in those cases was limited by the fact that they dealt with differently drafted definitions of election advertising.
[73] Two Canadian authorities cited, Harper v Canada43 and British Colombia Teachers’ Federation v British Colombia (Attorney-General),44 involved definitions of election advertising which were broader. Of note, they included an advertising message which “takes a position on an issue with which a registered political party of candidate is associated”.45 This is very similar to the deliberately omitted cl 5(1)(a)(iii) of the Electoral Finance Bill 2007 which was rejected by Parliament
and would have narrowed the New Zealand definition of election advertisement.
43 Harper v Canada, above n 32.
44 British Colombia Teachers’ Federation v British Colombia (Attorney-General) [2011] BCCA
408.
45 British Colombia Election Act 1996, s 228.
Despite the width of the Canadian definition, a majority of the Supreme Court of Canada upheld the restriction as being a proportionate and minimal impairment to the harms which Parliament had sought to address to combat what was described as the “electoral unfairness” that may result from unlimited third party advertising.
[74] The Commission acknowledged that the overseas authorities were of minimal relevance but sought to emphasise the result in Harper v Canada and Bastarache J’s observation in that case that the definition of “election advertising” in the Canada Elections Act 2000 was a proportionate and minimally impairing response to achieve the objective of electoral fairness and the promotion of integrity of the financing regime applicable to parties and candidates to maintain public confidence in the
integrity of the electoral process.46 The Commission emphasised the majority’s
approach to the exceptions in the definition of “election advertising” which were broadly equivalent to those outlined in s 3A(2) of the New Zealand legislation, and were relevant to the Supreme Court’s conclusion that the limitation was justified.
[75] The British Colombia Court of Appeal in British Colombia Teachers’ Federation v British Colombia (Attorney-General), held that the definition of “election advertising” “overshot” its objective of electoral fairness and could not be held to have only minimally impaired the right to freedom of expression. The Court noted that the definition was “bound to include what some had called pure issue
advocacy”.47 As Mr Palmer fairly acknowledged however, those observations were
made in the context of a definition which included “an advertising message that takes a position on an issue with which a registered political party or candidate is associated” and is therefore has marginal, if any, application to the present issue.
[76] Mr Palmer however did direct the Court’s attention to the European Court of Human Rights decision in Bowman v United Kingdom48 which considered the compatibility of spending limits in the United Kingdom domestic statute with the freedom of expression guaranteed by the European Convention on Human Rights. Mrs Bowman was the executive director of the Society for the Protection of the
Unborn Child (SPUC) which was opposed to abortion and human embryo
46 Harper v Canada, above n 32, at [101]-[103].
47 British Colombia Teachers’ Federation, above n 44, at [66].
48 Bowman v United Kingdom [1998] ECHR 4.
experimentation. In the period immediately prior to a parliamentary election, Ms Bowman organised the distribution of leaflets urging constituents to “check on candidates voting intentions on abortion…”. The United Kingdom Act prohibited expenditure of more than £5 by an unauthorised person during the period before an election, on conveying information to the electorate with a view to promoting or procuring the election of a candidate.
[77] The European Court of Human Rights held that the spending cap was a restriction on Mrs Bowman’s freedom of expression but one that served the legitimate aim of protecting the rights of others, namely the candidates in the electorate. In examining the issue of whether the restriction was “necessary in a democratic society”, the Court accepted that in the period preceding an election certain restrictions on freedom of expression, which may not usually be acceptable, may be necessary. However, the Court was not satisfied that it was necessary to limit her expenditure to £5 in order to achieve the legitimate aim of securing equality between candidates, and concluded that the restriction was disproportionate to the
aim that was sought to be achieved.49
[78] The New Zealand statutory framework is obviously different and, as submitted by the Commission, the limits on expenditure were far more severe than attaches to promoters of election advertisements in New Zealand. The finding that the £5 restriction was disproportionate to the aim sought to be achieved by the limitation securing equality between candidates is not comparable to the New Zealand situation. The case is consequently of limited assistance and does not influence my approach.
Conclusion as to the meaning of election advertisement
[79] I am satisfied that the meaning of “election advertisement” contained in s 3A(1) is a proportionate means of achieving the important objective of preserving the integrity of the electoral system and ensuring a “level playing field” for expression designed to influence the public as to the type of candidate or party for
whom they should vote. Insofar as the definition limits the right to freedom of
49 At [47].
expression, I am satisfied that Parliament has chosen a means which can be considered reasonably necessary to achieve this objective and one which is justified in a free and democratic society. As a result, it follows that Parliament’s intended meaning insofar as it is inconsistent with the right to freedom of expression is a legitimate limitation on that right.
[80] Of concern is the uncertainty which may arise in assessing those publications which sit at the margins of the definition. To some extent this difficulty was recognised by the legislature. The Act requires the Commission to provide on request an opinion on whether an advertisement constitutes an election
advertisement.50 In my view the meaning sought to be ascribed to the definition by
Greenpeace and the Climate Voter organisations, whereby “issues advocacy” would be excluded and the encouragement to vote for a candidate or party required to be explicit, would not make the definition’s application any more certain. Rather, it would only move the focus to a different point along the continuum, the edges of which are likely to be equally grey. Ultimately, I am not satisfied that the alternative meaning contended by Greenpeace and the Climate Voter organisations is reasonably
possible on the text of the legislation and in light of its purpose.51
Applying s 3A to the Climate Voter website
[81] I have described the website at [8], and a screenshot of the website’s homepage is annexed to this judgment. The site contains a Twitter feed where the Climate Voter campaign posts weekly questions to political parties regarding their respective climate change policies and to which parties are requested to post their
answers. Examples include the following:
President Obama calls climate change one of the most significant challenges we face, requiring urgent action by all governments. Do you
agree?
The World Bank says strong competitive public transport, walking and
cycleways are key to lowering transport emissions, yet 95% of NZ's
50 Electoral Act 1993, s 204I.
51 R v Hansen, above n 6, at [93]-[94].
planned new transport infrastructure investment is roads. How would
your party change this?
Pure advantage, the Royal Society, economic consultants PwC all conclude that Clean-Tech offers a multi-billion dollar opportunity for
New Zealand. What will your party do to make it happen?
UN Climate Chief says 75% of fossil fuel reserves must stay in the ground to keep global warming under two degrees. Do you support: phasing out, reducing, or further expanding deep sea oil drilling, fracking
and coalmining?
[82] Various representatives of political parties have posted answers to these questions outlining their party’s approach and response. The Twitter feed however
(Citations omitted)
[135] The issue of costs in that case was uncontested, however the observation of the Court of Appeal is obviously of considerable weight. The parties did not address the question of costs orally at the hearing, and Greenpeace and the Climate Voter organisations should have the opportunity to consider their positions. Accordingly, if
the issue of costs is to be pursued, the parties should exchange memorandum (of no
83 Alliance Party v Electoral Commission [2010] NZCA 4, [2010] NZAR 222.
84 At [46].
more than five pages each) and serve and file within 20 working days of the date of this judgment.
Solicitors:
LeeSalmonLong, Wellington
Crown Law, Wellington
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