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 Respondent

Judgment:

9 March 2016

JUDGMENT OF MALLON J

[…]

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. 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.

[…]

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 Commission 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.

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