Peters v Electoral Commission
[2016] NZHC 394
•9 March 2016
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IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CIV 2015-485-222 [2015] NZHC 394
UNDER the Judicature Amendment Act 1972 IN THE MATTER OF
an application for judicial review
BETWEEN
WINSTON PETERS Applicant
AND
THE ELECTORAL COMMISSION Respondent
Hearing: 12 October 2015 Appearances:
B P Henry and A M Dunlop for the Applicant
P J Gunn and M J McKillop for the RespondentJudgment:
9 March 2016
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]
PETERS v THE ELECTORAL COMMISSION [2015] NZHC 394 [9 March 2016]
Introduction
[1] 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.
[2] 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.
[3] 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.
[4] 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.
1 The Electoral Commission has, as it has in other cases, participated in order to assist the Court in the absence of another named contradictor.
Background
[5] 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.
[6] 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.
[7] 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.
[8] 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.
[9] 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.
[10] 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.
[11] 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).
[12] 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.
[13] 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 legislation
[14] 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
[15] 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.
[16] 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:
2 Electoral Act 1993, long title.
3 Section 4B(2).
4 Section 4D(1).
(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.
[17] 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 the two days preceding polling day.7
[18] Under the Act there are also restrictions on election advertising (Part 6AA) and election expenses and donations (Part 6A) in the three month period before the election polling day. Amongst other things, these provide who may authorise election advertisements and cap the amount that may be spent on election advertising
during the regulated period.8 Editorial content in a periodical, radio or television
programme or in a publication on the internet is not restricted.9 Nor is there a restriction on the expression of personal views on the internet, for which no payment
5 Section 197.
6 Section 197(1)(g).
7 Section 199A.
8 See, for example, s 204B.
9 Section 3A(2)(c).
is received.10 It is an offence to avoid the limits that are prescribed and to fail to comply with procedures related to these limits.11
[19] Part 7 of the Act provides other offences collectively described as “corrupt and illegal practices”. These include voting as some other person (personation)12 and bribing a voter.13 There is also an offence for publishing any advertisement relating to an election, that is not an “election advertisement”,14 without stating the name of the person at whose direction it is published.15 This Part of the Act also provides the punishment for a corrupt practice.16 The offence in s 199A is categorised as a corrupt practice. The penalty is a term of imprisonment not exceeding two years or a fine not exceeding $40,000.17
Industry regulation of advertisements
[20] There are other restrictions in place which bear upon what may be said about candidates or parties contesting an election. For present purposes the relevant restrictions are provided by the Broadcasting Act 1989 and by the Advertising Standards Authority (the ASA).
[21] Broadcasters (television and radio) are subject to the Broadcasting Act. This requires broadcasters to adhere to codes of practice issued by the Broadcasting Standards Authority (the BSA). Under the current provisions a viewer who considers that a broadcaster has breached the code in relation to an election programme is able to complain directly to the BSA.18 No timeframe is provided within which the BSA will make its decision. Prior to 19 December 2007 the complaint had to first go to the broadcaster who was required to respond within 48 hours. If the viewer was dissatisfied with the response they could then lodge a
formal complaint with the BSA which endeavoured to provide a response within 48
10 Section 3A(2)(e).
11 Sections 204D, 204E, 204F, 204G, 204H, 205B, 205F, 205N, 205O, 206B, 206D, 206E, 206N,
206O, 206U, 206X, 206Y, 206ZE, 206ZF, 207D, 207F, 207H, 207J, 207L, 207LA, 209B and
209C.
12 Section 215.
13 Section 216.
14 As defined in s 3A.
15 Section 221A.
16 Sections 3 and 224.
17 Section 224(1).
18 Broadcasting Act 1989, s 8.
hours. Under the present provisions, and under the procedures prior to 19 December
2007, if the BSA upholds the complaint it can make an order, amongst other things, directing the broadcaster to refrain from broadcasting or from broadcasting advertising programmes for specified periods.19
[22] The ASA was established by the advertising industry to provide self- regulation. The ASA has issued codes of practice intended to maintain acceptable standards of advertising and to ensure that advertisements are not misleading or deceptive. The codes are intended to complement the law. Anyone can complain about any advertisement in any media (traditional and digital media) that they consider to breach of the codes. An advertisement is to be taken in its broadest sense and includes advertising that promotes a political viewpoint. It also includes
pamphlets delivered directly to individual voters.20 The Advertising Complaints
Board considers the complaint and if it concludes the advertisement breaches the codes it issues a decision upholding the complaint. Such a finding does not carry any particular legal consequences.
Is the decision reviewable?
[23] The Electoral Commission says that its letter of 5 November 2014, expressing its view that the two advertisements did not breach s 199A, was given pursuant to its function to make available information to assist parties and candidates to meet their statutory obligations.21 It says that in providing this view it was not exercising a statutory power of decision under the Judicature Amendment Act 1972.
[24] An application for review may be made under that Act in respect of the exercise of a “statutory power”.22 That is defined as including the “exercise of a statutory power of decision”. That in turn is defined as “a power or right conferred by or under any Act … to make a decision deciding or prescribing or affecting … the
rights … or liabilities of any person”.23 The exercise of a statutory power is also
19 Section 13.
20 Advertising Standards Authority, Advertising Codes of Practice 2014 (ASA, Wellington, 2014)
at 11, also found at Advertising Standards Authority “Advertising Code of Practise 2014”
< 11.
21 Electoral Act 1993, s 5(e).
22 Judicature Amendment Act 1972, s 4.
23 Section 3.
defined as including a power “to make any investigation or inquiry into the rights, powers, privileges, immunities, duties, or liabilities of any person”.24
[25] The Electoral Commission’s letter of 5 November 2014 set out its opinion on the meaning of s 199A. It was not a legally binding determination of whether the advertisements breached s 199A and it did not prevent any person from referring the advertisements to the police. In that sense it was not a decision.
[26] However it arguably was an investigation into the rights or liabilities of a person. The advertisements were considered and an opinion was provided pursuant to the Electoral Commission’s statutory function to assist parties and candidates to meet their statutory functions. The Electoral Commission does not have a statutory duty to refer a suspected breach of s 199A to the police (in contrast with some other
offences).25 But it does have an important role in the electoral process. In light of
the Electoral Commission’s objectives and functions, the police would likely take into account the Commission’s considered view on s 199A in deciding whether to proceed on a complaint that someone had breached that section. The Electoral Commission’s view therefore has potentially important public consequences.26
[27] I therefore consider that when the Electoral Commission provides its considered view on the interpretation of s 199A it is exercising a reviewable statutory power. The fact that its view is not a decision which legally determines rights or liabilities is relevant to the appropriate relief if the Commission makes an error of law. The relief sought here was an order quashing the “decision”. Such relief would not in my view be appropriate. However a declaration that the view was an error of law may be appropriate if that is the conclusion I reach.
[28] The alternative is to bring an application under the Declaratory Judgments
Act 1908. That has been the procedural avenue taken in other cases.27 While that route is available, it my view it does not preclude the procedural avenue chosen in
24 Section 3.
25 See ss 120, 204J, 204I, 205P, 206P, 206ZG, 207O and 215 which set out a large number of offences in respect of which the Electoral Committee has a reporting duty.
26 Royal Australasian College of Surgeons v Phipps [1999] 3 NZLR 1 (CA) at 11 to 12.
27 Greenpeace of New Zealand Inc v Electoral Commission [2014] NZHC 2135; and Watson v
Electoral Commission [2015] NZHC 666.
this case. The possibility of either procedural route was recognised in one of the cases brought as an application under the Declaratory Judgments Act where the Judge said:28
[238] … the challenge here is, in reality, to the correctness of the Commission’s advisory opinion. The issue of that advisory opinion reflects the exercise of a statutory power. Although brought in the form of an application for a declaratory judgment, these proceedings can be seen as raising the judicial review question as to whether or not the exercise of that power reflected a proper application and interpretation of laws. …
The meaning of “publishes”
Approach
[29] The meaning of an enactment is ascertained from its text in the light of its purpose.29 As explained in Commerce Commission v Fonterra Co-operative Group Ltd, this makes “text and purpose the key drivers” in interpreting a statutory provision. To give effect to these dual requirements, “even if the meaning of the text may appear plain in isolation of purpose, that meaning should always be cross- checked against purpose”. In determining purpose the court has regard to both the
immediate and the general legislative context. The social, commercial and other objective of the enactment may also be relevant.30
Section 199A
[30] Section 199A is in the following terms:
199A Publishing false statements to influence voters
Every person is guilty of a corrupt practice who, with the intention of influencing the vote of any elector, at any time on polling day before the close of the poll, or at any time on any of the 2 days immediately preceding polling day, publishes, distributes, broadcasts, or exhibits, or causes to be published, distributed, broadcast, or exhibited, in or in view of any public place a statement of fact that the person knows is false in a material particular.
28 Watson, above n 27, at [238].
29 Interpretation Act 1999, s 5.
30 Commerce Commission v Fonterra Co-operative Group Ltd [2007] NZSC 36 at [22].
“Publishes”
[31] Counsel for Mr Peters submits that the words of s 199A are clear and unambiguous. A statement that is on the internet during the prohibited period (polling day and the two preceding days) is published and will breach s 199A if the other requirements of that section are met. He submits that the Electoral Commission’s interpretation requires the word “first” to be inserted in the section, so that it would read “first publishes”. He says there is no basis on which that should be done.
[32] The Electoral Commission refers to the dictionary definition of “publish”, namely “to make public or generally known; to declare openly; to announce.”31 It submits that the prohibited period adds a temporal qualification to this. Publication must occur on polling day or on the preceding two days. It says a natural reading of s 199A indicates the section only applies to publications first occurring within the prohibited period. The verbs constituting the actus reus require some positive action to be taken on the relevant days before an offence can be committed. The Commission says that simply leaving material on display in whatever medium – the
passive continuation of a prior publication – could not be said to constitute publication on the relevant days.
[33] I start with the definition of “publish” provided in the Act itself. That
definition is as follows:
3D Meaning of publish
In this Act, unless the context otherwise requires, publish, in relation to an election advertisement, means to bring to the notice of a person in any manner—
(a) including—
(i) displaying on any medium: (ii) distributing by any means: (iii) delivering to an address:
(iv) leaving at a place:
31 Oxford University Press “publish v.” (December 2015) Oxford English Dictionary
< at [I, 2.a].
(v) sending by post or otherwise:
(vi) printing in a newspaper or other periodical: (vii) broadcasting by any means:
(viii) disseminating by means of the Internet or any other electronic medium:
(ix) storing electronically in a way that is accessible to the public:
(x) incorporating in a device for use with a computer: (xi) inserting in a film or video; but
(b) excluding addressing one or more persons face to face.
[34] The definition refers to “election advertisement”, which is also defined in the Act, whereas s 199A refers to “a statement of fact” which is intended to influence a voter. There is likely to be considerable overlap. The statements at issue here, for example, were electoral advertisements.
[35] In s 199A the present tense “publishes” is used. The offence is committed by a person who “publishes” the statement in the prohibited period. Applying the s 3D definition, in the case of a statement on the internet it is the act of:
bring[ing] to the notice of a person in any manner…including … displaying on any medium: …disseminating by means of the Internet or any other electronic medium: storing electronically in a way that is accessible to the public:
[36] Applying that definition the question is whether a person is disseminating a statement by means of the internet on 18 and 19 September 2014 if they have placed the statement on the internet on an earlier date, and have left it there so that it remains on the internet on 18 and 19 September 2014? In my view it is the natural meaning of those words to answer that question “yes”. Similarly, is a person storing a statement electronically in a way that is accessible to the internet on 18 and 19
September 2014 if they put the statement on the internet on an earlier date and have not removed it by 18 and 19 September 2014? In my view it is the natural meaning of those words to answer that question “yes”.
[37] On the other hand it is also possible to read those words in the way the Electoral Commission contends. That is, a person is not disseminating a statement by means of the internet or storing the statement electronically on polling day, because the disseminating or storing occurred earlier. However that reading seems to me to be the less natural and ordinary one. When something is put on the internet it is accessible to the public each moment that someone is accessing the internet. It is a continuing dissemination or storing of the statement until it is removed.
[38] The definition in s 3D is consistent with the dictionary definition of “publish”. In addition to the dictionary definition referred to by the Electoral Commission above,32 other dictionary definitions include:
1 v.t. Make generally known; declare or report openly; announce; disseminate (a creed or system); … 6.b v.t. Make (a work, information, etc.) generally accessible or available; place before the public;33
3 (tr) to announce formally or in public;34
vt to issue to the public; … to put into circulation.35
[39] Applying the dictionary definition, where a statement is on the internet on 18 and 19 September 2014, having been put there on an earlier date and not removed by
18 September 2014, the statement is generally accessible or available, and is placed before the public. It is a natural and ordinary meaning of “publishes” to say that when a person accesses the internet and reads the statement, the statement is brought to their notice at that time. On the other hand, I accept that it is possible to read “publishes” as meaning the time at which the statement is put on the internet (that is,
a single publication).36 Which meaning is to be preferred must be determined in
light of the purpose of the section, as may be derived from its immediate and general legislative context and objectives.
32 At [I,2.a].
33 Lesly Brown (ed) The New Shorter Oxford English Dictionary – Volume 2 N-2 (4th ed, Claredon
Press, Oxford, 1993) at 2405.
34 Duncan Black (ed) Collins English Dictionary (10th ed, Harper Collins Publishers, Glasgow,
2010) at 1329.
35 Vivian Marr (ed) The Chambers Dictionary (11th ed, Chambers Harrap Publishers Ltd, Edinburgh, 2008) at 1258.
36 I note that this is a current issue also in the context of a defamatory statement on the internet; see the discussion in Stephen Todd (ed) The Law of Torts in New Zealand (6th ed, Brookers, Wellington, 2013) at 840-842 and fn 224.
“Publishes” in context of s 199A
[40] The word “publishes” appears in s 199A with “distributes, broadcasts, or exhibits”. Its meaning should be considered in that context:
(a) “Dist ributes”
is the act of distributing (giving out) a statement in a
public place. That would apply naturally to the delivery of pamphlets to households. A statement is distributed each time a pamphlet is delivered to a household. This would mean that pamphlets delivered on 17 September 2014 would not be caught by s 199A, but pamphlets delivered on 18 September 2014 would be (if the other requirements of the section were met). In the case of an overnight delivery those before midnight would not be caught and those delivered after midnight would be.
(b)“Broadcasts”: a broadcast is something transmitted in some way for reception by a person or persons. Most naturally a broadcast refers to something that can be seen or heard on the radio or television although there may be other forms of communication that also qualify as broadcasts. A statement broadcast on the radio or television before midnight on 17 September 2014 would not be caught by s 199A. But if the broadcast continued into the early hours of 18 September 2014 it would then be caught by s 199A (if the other requirements of the section were met). It would be the same position with any other forms of broadcasting.
(c) “Ex hibi ts” : to exhibit something is to show or display something. A statement is being exhibited while it is on show or displayed. A statement might be exhibited by being placed on a billboard for example. A person who exhibits a statement on 17 September 2014 by placing a billboard in a public place, will still be exhibiting the statement if the billboard remains in place on 18 September 2014.
[41] It is therefore possible to conceive of situations caught by s 199A when the person has brought the statement to the notice of the public before the prohibited
period, and continues to do so during the prohibited period unless the person takes action to bring the publishing, distributing, broadcasting or exhibiting to an end. No exclusion for such situations is provided. This suggests that Parliament intended such statements to be covered. To adopt what I consider the ordinary and natural meaning of “publishes” in the context of a statement disseminated or stored on the internet is consistent with that apparent intention.
“Publishes” in the context of s 197
[42] Section 199A overlaps with s 197 because that section also provides an offence in relation to statements made on polling day. Section 197 covers a wider range of prohibited activities on polling day than that but, insofar as is covers statements, it provides:
197 Interfering with or influencing voters
(1) Every person commits an offence and shall be liable on conviction to a fine not exceeding $20,000 who at an election—
…
(g) at any time on polling day before the close of the poll exhibits in or in view of any public place, or publishes, or distributes, or broadcasts,—
(i) any statement advising or intended or likely to influence any elector as to the candidate or party for whom the elector should or should not vote; or
(ii) any statement advising or intended or likely to influence any elector to abstain from voting; or
(iii) any party name, emblem, slogan, or logo; or
(iv) any ribbons, streamers, rosettes, or items of a similar nature in party colours:
…
[43] The scope of s 197(g) is limited by a number of provisos. Relevantly they include:
provided that this paragraph shall not apply to any statement, name, emblem, slogan, or logo in a newspaper published before 6 pm on the day before polling day:
provided also that where any statement, name, emblem, slogan, or logo which does not relate specifically to the election campaign and which is so exhibited before polling day in a fixed position and in relation to the New Zealand or regional or campaign headquarters (not being mobile headquarters) of a political party, it shall not be an offence to leave the statement, name, emblem, slogan, or logo so exhibited on polling day:
…
[44] The scope of this offence is further limited through two defences. The first, which is provided by s 197(2), is as follows:
(2) It shall be a defence to a prosecution for an offence against subsection (1)(g) that relates to the exhibition in or in view of a public place of a statement, name, emblem, slogan, or logo, if the defendant proves that—
(a) the exhibition was inadvertent; and
(b) the defendant caused the exhibition to cease as soon as the defendant was notified by a Returning Officer or a manager of the polling place that the exhibition was taking place.
[45] The second defence is provided by s 197(2A), which is as follows:
(2A) It is a defence to a prosecution for an offence against paragraph (g) of subsection (1) that relates to the publication on an Internet web site of a statement or other material specified in that paragraph, if the defendant proves that—
(a) the statement or material was placed on the web site before polling day; and
(b) the defendant did not operate or permit the operation of systems that cause the statement or material on the web site to be made available, on polling day, to persons other than persons who voluntarily access the web site; and
(c) the defendant did not, on polling day, distribute, broadcast, or exhibit in or in view of a public place, or publish, or at any time cause to be published, in an issue of a newspaper or magazine that is first issued on polling day any material promoting or advertising the web site.
[46] Section 199A is not subject to these exceptions. The overlap between ss 199A and 197 is that both may apply to a knowingly false statement made on polling day which is intended to influence voters. If the statement is charged as an offence under s 197 it will not be necessary to prove that it was knowingly false but the provisos and defences may arise and a lower maximum penalty will apply.
[47] The provisos and defences in s 197 contemplate the possibility that statements may be published before polling day and may continue to be seen by the public on polling day. The exceptions that are made for such statements are limited. Newspapers published before 6 pm on polling day are not captured even though it may be presumed that members of the public may read them on polling day. Statements which do not relate specifically to the election campaign, which are exhibited in a fixed position at the party’s headquarters, do not need to be removed on polling day. Statements exhibited in a public place before polling day are to be removed by polling day, but inadvertence is a defence. A statement placed on the internet before polling day is able to remain there on polling day, but operating a system that causes the statement to be available other than via voluntary access of the website and promoting the website are prohibited.
[48] Section 197(2A), which provides the exception for statements remaining on the internet, was inserted into the Act at the same time as s 199A.37 This indicates that at the time s 199A was enacted Parliament contemplated the possibility of statements being placed on the internet before the prohibited period and remaining there during the prohibited period. Parliament expressly stated what was and was not covered by s 197 in this respect. It would not be an offence under s 197 to merely leave it on the internet. Something more was required under this section.
[49] As Parliament did not include a similar defence in relation to s 199A it appears that the offence of publishing knowingly false statements was intended to be wider. An inference can be drawn that, in contrast with s 197, leaving a knowingly false statement on the internet where it could be voluntarily accessed by the public was intended to be caught (as would access of the kind not covered by the defence
provided by s 197(2A)). The wider reach of s 199A is explicable by the potentially
37 Pursuant to the Electoral Amendment Act 2002.
greater culpability and harm to a free and fair election associated with a knowingly false statement left on the internet, than a statement that remains on the internet which is not knowingly false.
[50] The alternative inference is that Parliament did not intend either section to capture statements placed on the internet before the prohibited period, which remain there during the prohibited period if that was all that a defendant was responsible for. Section 197(2) makes it clear what additional circumstances are required before there can be liability for online publications on polling day. If those circumstances exist, there is liability under s 197 but not under s 199A.
[51] I consider the first inference to be the more likely one. If simply leaving a statement on the internet was not caught by ss 199A and 197(g), I would expect the wording to have been clearer. I consider it to be implicit in the wording of s
197(2A)(a) that leaving material on a website on polling day was potentially covered by the words of s 197(g). Section 197 provided that it was not caught by s 197(g) unless the requirements of s 197(2)(b) were met. No such additional circumstances were stipulated for liability under s 199A. I therefore consider that, in so far as Parliament’s intent can be gauged from s 197 in relation to statements on the internet, that intent is consistent with what I consider to be the natural and ordinary meaning of “publishes” in s 199A.
Distinction between first publication and continuing publications elsewhere in the
Act
[52] The Electoral Commission refers to the distinction that is drawn between first and continuing publications in relation to the regulation of election advertisements and expenses under Parts 6AA and 6A of the Act. It submits that this is consistent with its interpretation of s 199A in that where the Act intends to provide for continuing publications it does so expressly, and it has not expressly provided in s 199A for continuing publication.
[53] By way of example the Electoral Commission refers to s 204C. Section
204C appears in Part 6AA, under Subpart 1 which concerns the general rules governing election advertising. Under s 204B a party secretary, a candidate or a
registered promoter is entitled to promote an election advertisement. An unregistered promoter is entitled to promote an election advertisement if they do not incur advertising expenses beyond a maximum amount, currently $12,600, “during the regulated period” (which is the three month period before polling day).38 It is an offence to exceed the maximum amount.39 Section 204C is concerned with determining how advertising expenses are calculated during the regulated period. It
provides:
204CApportionment of advertising expenses for publication of election advertisement promoted by unregistered promoter both before and during regulated period
(1) This section applies if an election advertisement that is promoted by an unregistered promoter—
(a) is published both before the commencement of the regulated period and during the regulated period; or
(b) is published before the commencement of the regulated period and continues to be published during the regulated period.
(2) If this section applies,—
(a) the election advertisement is deemed to have been published during the regulated period; but
(b) the advertising expenses for the publication of the election advertisement must be apportioned so that only a fair proportion of the expenses is attributed to being incurred during the regulated period.
(3) Only the advertising expenses attributed to being incurred during the regulated period determined in accordance with subsection (2) are advertising expenses for the purposes of section 204B(1)(d).
[54] I do not agree with the Electoral Commission that this section distinguishes between when something is first published and a continuing publication. Rather the section recognises two situations in which there might be confusion about how to calculate expenses to determine if they exceed the maximum amount. Each situation relates to an advertisement that is published both before and during the regulated period. One situation is where an advertisement is published before the
commencement of the regulated period and then republished during the regulated
38 Section 204B(1)(d).
39 Section 204D.
period.40 The other situation is where an advertisement is published before the commencement of the regulated period and continues to be published during the regulated period.41 In both situations the advertising is covered by the restriction that applies to an unregistered promoter who promotes an election advertisement42 and it is only the amount incurred during the regulated period that is relevant in determining whether the expenses fall within the maximum amount.43 The relevant amount is the fair proportion of the expenses of the advertisement for the regulated period.44
[55] The section therefore has quite a different purpose than ss 197 and 199A. It is not concerned with determining when something was first published in order to attract liability. It is concerned with ensuring that advertisements during the regulated period are covered by the restriction on advertising expenses and determining how they are to be calculated. I consider that this section does not provide support for the Electoral Commission’s view on the advertisements which led to Mr Peters’ complaint in the present case. If anything, it is another example of Parliament recognising the possibility both of republications and continuing publications during the prohibited or restricted periods, and despite that recognition
not providing any exception for either in relation to s 199A.45
[56] I take the same view of the other examples provided by the Electoral Commission. One of those is s 205. That section is under Part 6A, Subpart 1 which concerns election expenses of candidates. Section 205C sets a maximum amount of election expenses a candidate may incur during the regulated period. Section 205F provides that it is an offence to exceed the maximum amount. For the purposes of these sections s 205 defines election expenses as meaning advertising expense in relation to a candidate advertisement that “is published, or continues to be published, during the regulated period”. Section 205D relates to apportioning advertisement
expenses for candidate advertisements published before and after the regulated
40 Section 204C(1)(a).
41 Section 204C(1)(b).
42 Section 204C(2).
43 Section 204B(3).
44 Section 204C(2)(b).
45 Although not too much can be taken from this example given the different time the provisions were enacted.
period and is in similar terms to s 204C. To similar effect are ss 206, 206C, and
206CA (which contain similar provisions in relation to expenses for party advertisements) and ss 206S, 206V, and 206W (which contain similar provisions in relation to expenses of registered promoters).
Parliamentary materials
[57] The Electoral Commission contends that the legislative history of s 199A assists in determining the mischief that it was intended to address. It submits that the purpose of s 199A was to limit the ability to propagate falsehoods with the intention of influencing voters close to the election when there was no sufficient opportunity to correct or respond to the false statements. It refers to the Justice and Electoral Committee’s report on the inquiry into the 1999 general election in support of this
submission.46
[58] The Justice and Electoral Committee is a parliamentary select committee which undertakes a post-election review of the practices and procedures involved in each election. It also examines proposed legislative amendments in relation to elections and makes suggestions in relation to them. Section 199A was inserted following the inquiry into the 1999 general election. One of the issues considered in that inquiry was statements containing errors of fact made in the last days of the electoral campaign.
[59] Alongside that inquiry, the Electoral Amendment Bill (No 2) 2001, a bill to improve and modernise election procedures and simplify enrolment and voting procedures, was introduced. At this time the Committee had not completed its report on the 1999 general election inquiry. When introduced, the Bill did not contain a clause dealing with the issue of false statements made in the last days of the election campaign. The Bill did contain a clause that would prohibit publication of public
opinion polls on polling day and the 28 day period prior to polling day.47 On the
recommendation of the Justice and Electoral Committee, this clause was removed
46 Justice and Electoral Committee Inquiry into the 1999 General Election (December 2001) at 8.4.
47 Clause 54. This provision originated from a member’s bill in the name of the Rt Hon Winston Peters. The Attorney-General tabled a paper in the House reporting her view that s 54 of the Bill was inconsistent with s 14 of the New Zealand Bill of Rights Act 1990.
and a new clause, which became s 199A, was inserted. The Bill also included the clause which became s 197(2A).
[60] In respect of these provisions the Committee’s report on the Bill said:48
If information is being published that is false or misleading, it would be more appropriate to seek a remedy to solve that particular problem rather than aiming generally at opinion polls. We have therefore proposed an amendment to the Act that would make it an offence to make any false or misleading statement of fact intended to influence voters. That proposal will be discussed in more detail in our report on the inquiry into the 1999 general election.
…
It will be a corrupt practice for a candidate knowingly to make a statement containing untruths in the two days before an election, for the purpose of influencing the vote. This will provide an incentive against any candidate attempting to sway voters by spreading false information so late in the election that the media, other candidates or parties are unable to test it in time to respond.
…
Websites of parties and candidates will be allowed to operate on election day as long as they are accessed voluntarily by web-surfers and do not appear in automatic pop-up windows. Electors should always be able to access information about political parties if they wish to do so, but that information should not be sprung upon them on election day without their request.
[61] Subsequently the Committee reported on its inquiry.49 In that report the
Committee said:50
We have considered the situation where people, in particular, candidates make an inaccurate or misleading statement on the eve of an election and where the statement attracts a lot of attention and may sway the minds of voters. …
The current regime requires that advertisements and broadcasts containing false or misleading statements be withdrawn after complaints against them have been upheld. In the case of complaints made under the Broadcasting Act 1989, the process of complaint and decision may take four days or more, which is no remedy when the misleading statement has been broadcast on the eve of the election.
48 Justice and Electoral Committee Electoral Amendment Bill (No 2) Commentary (29 September
2001) at 9, 14 and 15.
49 This committee undertakes a post-election review of the practices and procedures involved in each election. It examines proposed legislative amendments and makes suggestions in relation to them.
50 Justice and Electoral Committee Report, above n 46, at [8.4.1].
…
Statements containing errors of fact in the last days of the election campaign present a particular problem. It is difficult for other candidates or parties to respond to such statements in time to correct the error of fact, and there may be insufficient time for electors to evaluate the statements and ascertain the truth. This means that there is a real danger in such situations that electors will base their electoral choices on erroneous information. There is also a temptation for unscrupulous candidates to exploit media and voters over the last few days of the campaign by issuing misleading statements.
[62] In deciding what was the appropriate response to that mischief the Committee said:51
We do not wish to see people’s right to freedom of expression unduly limited, especially during election campaigns, but we consider that there is a very narrow class of expressions that should be limited in order to protect the integrity of the electoral decision. The expressions that should be limited are deliberately false statements of fact made on election day and the two preceding days with the intention of influencing the vote of any elector. We have recommended an amendment to the Electoral Amendment Bill (No 2) to this effect.
[63] In relation to whether this was consistent with the right to freedom of expression, the Committee said:52
We have considered the interests involved in this issue: on one hand the right to freedom of expression, as set out in section 14 of the New Zealand Bill of Rights Act 1990, and on the other hand the importance of preventing any deliberate deception of voters by candidates and other people at a general election. We recommend some changes to the law, as set out in the following discussion.
[64] In relation to what became s 197(2A), the Committee’s report said:53
The Chief Electoral Office received seven complaints about political party websites being active on polling day, but was unsure if websites were covered by the ban on advertising under section 197(1)(g). Laws governing electronic media will have to be developed in the near future. Until there is a comprehensive review of the laws governing electronic media, we have recommended amendments to the Electoral Amendment Bill (No 2) to exempt websites from the ban on election advertising on polling day. It takes a positive action the part of a computer user to access a website, so we see no harm in allowing websites to remain active on election day as long as they are not activated by pop-up windows or e-mail spam. Pop-up windows and e-mail spam are methods of distributing information over the Internet to unsuspecting Internet users who have not actively sought out that
51 At [8.4.1].
52 At [8.4.1].
53 At [5.12.1].
information. In the context of electoral law, we regard these methods as forms of advertising.
[65] The Committee also recommended that the Government consult with broadcasters and the BSA about whether a better process might be developed for consideration of false and misleading statements broadcast as part of election programmes. The ASA complaint procedures were considered to be adequate and no similar recommendation was therefore made with respect to non-broadcast advertisements.
[66] The Committee considered but decided against recommending a defamation offence.54 It considered such an offence would be inconsistent with the right to freedom of expression under the New Zealand Bill of Rights 1990.55 It considered that the proposed new clause 199A provided “adequate interim disincentive to false and misleading statements”.56
[67] When the Bill was reported back the responsible Minister tabled a Supplementary Order Paper which proposed a new provision reintroducing the offence of defaming a candidate at election time. The offence would apply to untrue statements about a candidate made in the month before an election. This amendment was not passed. Clause 199A was retained.
[68] There were speeches in Parliament during the passage of the legislation that commented on s 199A. Following the second reading Richard Worth (National) questioned its workability.57 He said:58
It is an unusual provision in many respects, and I question its workability. … I would like the Minister … to explain the justification for that 2-day period. I suggest that particularly in rural electorates throughout New Zealand, if such defamatory material was published to influence voters, then 2 days would be nowhere near sufficient time to correct what might be highly objectionable, highly offensive, and possibly criminally libellous material.
…
54 Until 1992 there had been a defamation provision. It was removed at that time on the basis that criminal liability for slander could not be justified.
55 Justice and Electoral Committee Report, above n 46, at 95.
56 At 96.
57 The responsible Minister’s response did not address this query.
58 (15 November 2001) 596 NZPD 13167.
In the context of the Defamation Act, for example, 2 days will not permit resort to the range of remedies available in the legislation.
[69] Richard Worth was also concerned that s 197 had not been reviewed. He considered the wording was old fashioned and there were significant gaps in the way the provision was drafted. Warren Kyd (National) was concerned about what would qualify as a “false” statement. Alec Neill (National) asked if s 199A was introduced because of statements made by Mr Peters two days out from the last election about Work and Income expenditure which Mr Neill said were never proved.
[70] Warren Kyd (National) also said National was pleased to see the defamation provision go and s 199A stay because they deal with very different matters. He said s 199A deals with:59
… false statements being made within 2 days of an election, when no one has the opportunity to rebut them. [The defamation provision] would have damped down the whole election campaign period.
[71] Stephen Franks (ACT) said that the tactic of:60
… deliberately raising contentious or unsubstantiated issues immediately before an election was a pernicious practice, and I believe I can correctly claim the initiative that will result in section 199A appearing in the Electoral Act.
[72] Having reviewed these materials I accept that the intention was to capture false statements made shortly before an election. The reason for the provision was to address the problem of statements which could influence a voter when there would not be a sufficient opportunity to correct them. This was seen as a justified limit on freedom of expression in contrast with the defamation provision which was viewed as an unjustified limit and excluded from the Act.
[73] The materials do not particularly assist with why the two day time frame was selected. The Committee noted the four day time frame which, at that time, applied
to complaints under the Broadcasting Act.61 There would therefore be insufficient
59 (19 February 2002) 598 NZPD 14458.
60 (26 February 2002) 598 NZPD 14622.
61 Refer to [61] above.
time for a false statement made three days before polling day to be dealt with under the Broadcasting Act procedures.
[74] The conclusion I draw is that the two day time frame was selected to ensure the offence was not too widely cast. If it was too widely cast it could have a chilling effect on legitimate campaigning and thereby potentially impinge on the right to freedom of expression beyond that which was justified. False statements three days out would not be criminal because a candidate or party would at least have three days before polling day to respond in some way (not necessarily through the BSA processes). Two days out from polling day was regarded as insufficient time to respond.
[75] This appears to provide some support for the Electoral Commission’s view that only statements that are first published during the two days before or on polling day are intended to be caught by s 199A. If a statement is first published earlier than that, the candidate or party who takes objection to the statement is able to respond in some way to the false statement so that voters are not misled.
[76] However, on this rationale, a statement that is first published before the prohibited period (for example, via an article in a printed daily newspaper) which is republished during the prohibited period (for example, via a second article in a subsequent edition of the newspaper) would not be caught by s 199A. A candidate or a party who took objection to the statement would have had the opportunity to respond to the statement when it was first made (in the earlier edition in this example). Yet it is clear that on the words of s 199A the republication would be caught. The Electoral Commission acknowledges the possibility that republications are caught by s 199A.
[77] The mischief of a republication in the prohibited period is that it brings the false statement to the notice of members of the public for a second time. It may not be the same members of the public that see or hear the republished false statement as those who saw or heard the false statement the first time. Nor may they be the same members of the public who heard any response to the first publication of the false statement from the candidate or party which was the subject of the false statement.
Each time a false statement is brought the notice of a member of the public the harm to a fair election, which s 199A is intended to address, arises. This is the same with a continuing publication. The harm continues to arise for so long as the false statement continues to be brought to the notice of the public.
[78] I therefore conclude that the legislative history does not support the Electoral Commission’s view that s 199A applies only to statements that are first published in the prohibited period.
Public place
[79] The Electoral Commission submits that it is not clear that online publications were intended to be captured by s 199A. It says it is doubtful that a political party’s website or YouTube could be considered a “public place”. It says that “public place” is defined with a particular focus on physical locations and does not appear to contemplate digital environments.
[80] I do not agree with this submission. Section 3 defines “public place” as having the same meaning as in section 2 of the Summary Offences Act 1981. That meaning is as follows:
public place means a place that, at any material time, is open to or is being used by the public, whether free or on payment of a charge, and whether any owner or occupier of the place is lawfully entitled to exclude or eject any person from that place; and includes any aircraft, hovercraft, ship or ferry or other vessel, train, or vehicle carrying or available to carry passengers for reward.
[81] The definition is a wide one. It begins with “a place that, at any material time, is open to or is being used by the public”. It expands upon that by saying it is a public place “whether free or on payment of a charge” and “whether any owner or occupier of the place is lawfully entitled to exclude or eject any person from that place”. It goes on to provide that various modes of transport are included within the definition.
[82] The internet is a place open to the public and used by the public. It is often free of charge although a fee is payable for access to some sites. As already
discussed Parliament must have had the internet in mind at the time s 199A was enacted, given s 197(2A). If Parliament did not intend to capture false statements published on the internet then it could be expected to have made this clear, as it did when deciding upon the appropriate limits to the defence under s 197 in respect of websites.
[83] I note that the Justice and Electoral Committee’s discussion about websites on election day suggests a view that websites are not “advertisements”. 62 However this discussion was in the context of not wishing to prevent a person from voluntarily accessing information on a website on election day. It saw no harm in allowing websites to remain active on election day. The Committee did not discuss this issue specifically in relation to s 199A. While there may be no harm in a person accessing a website on election day, potential harm arises if that website contains knowingly false statements intended to influence a voter. I therefore consider that the
Committee’s limited discussion of this issue does not particularly assist in deciding whether s 199A was intended to apply to publications on the internet.
[84] Additionally, as set out above, “publish” in relation to “election advertisements” is defined as bringing something to the notice of the public in various ways, including via the internet. This definition was inserted on 1 January
2011. No amendment was made to s 199A at that time, as it might have been if the section was not intended to cover internet publication of election advertisements.
Interpretation consistent with New Zealand Bill of Rights Act 1990
[85] The Electoral Commission submits there is an ambiguity as to the application of s 199A. It submits that rights under the NZBORA are engaged: the right to vote in genuine periodic elections (s 12) and the right to freedom of expression (s 14). It submits that its view of s 199A is consistent with NZBORA in that the right to freedom of speech is minimally infringed and the limit is connected and proportionate to the objective. It submits that it is also consistent with the right to vote in genuine periodic elections because a genuine election is one which reflects
the will of the people and is free from intimidation or fraud.
62 Refer to [64] above.
[86] The same, however, can be said about the interpretation of s 199A which I consider is the correct one. It impinges slightly more on the right to freedom of expression in that it is wider in scope (covering continuing publications and republications as well as those first published during the prohibited period). However it remains a minimal infringement in that it applies for a short time frame and only limits statements known to be false. The limit is proportionate to the objective in the same way that the Electoral Commission’s interpretation is. The limit was regarded by the Justice and Electoral Committee as consistent with NZBORA in contrast with the proposed defamation provision which was not. Parliament enacted the provision recommended by that Committee.
Is relief appropriate?
[87] The Electoral Commission notes that Mr Peters had asked the Electoral Commission to refer the two advertisements to the police. It says it has no duty to refer suspected offences under s 199A to the police. It says it is unlikely to refer the matter to the police even if its letter of 5 November 2014 is quashed. It submits that the Court might therefore conclude that it is futile to grant the relief sought.
[88] However the relief sought in this proceeding is not an order requiring the Electoral Commission to refer the matter to the police. The order sought is a quashing of the decision. Counsel for Mr Peters made it clear that Mr Peters has no intention now of referring the two advertisements that were at issue here to the police. The concern is only to have the issue clarified going forward. The Electoral Commission agrees it is important to clarify the issue and that a declaratory order would therefore be useful.
[89] The Court is cautious about issuing declarations in respect of criminal matters. However there is now no intention to refer the complaint to the police in this case. Moreover there are other elements that must be proved for a s 199A offence and the Commission's view was that "it is unlikely that the available evidence would be sufficient to establish the other elements of the offence to the criminal standard”. The other elements include that the statements about which complaint is made are “statements of fact”. It also includes that the statement made
be “knowingly false” and that the statement is published with the intention of influencing voters. The mens rea components of the offence would need to be established at the time the offence is committed. The declaration sought in this case does not touch on these issues at all. In these circumstances I consider the appropriate relief is a declaration.
Result
[90] The application for judicial review is granted. I make an order declaring that the Electoral Commission’s view, as conveyed in its letter to counsel for Mr Peters on 5 November 2014, was an incorrect interpretation of the law. It was incorrect because s 199A applies to statements on the internet on polling day or on the two days preceding polling day, whether they were first placed on the internet at that time or were first placed on the internet at an earlier time.
Costs
[91] The statement of claim sought costs. The Electoral Commission submits that an order for costs is not appropriate and it did not seek them even if succeeded. It refers to the view taken by the Court of Appeal in Alliance Party v Electoral Commission63 that a costs order would risk operating as a disincentive to the Commission's active assistance on appeals from its decisions. Counsel for Mr Peters accepted this point had merit but did not have instructions to forego costs. For the reason observed by the Court of Appeal I agree that an order for costs is not appropriate. Costs are to lie where they fall.
Mallon J
63 Alliance Party v Electoral Commission [2010] NZCA 4 at [46].
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