THE ELECTORAL COMMISSION v WATSON & ANOR [2016] NZCA 512 [20 October 2016]

IN THE COURT OF APPEALOF NEW ZEALAND
CA239/2015 [2016] NZCA 512

BETWEEN THE ELECTORAL COMMISSION

Appellant
AND DARREN HAMISH WATSON

First Respondent

JEREMY THORNTON JONES

JUDGMENT OF THE COURT

A The application for leave to amend the grounds of appeal is granted.

B The appeal is dismissed.

C The appellant must pay the respondents costs for a complex appeal on a bandA basis and usual disbursements. We certify for second counsel.

Introduction

[1] Electoral law protects both the right to vote and the right to free expression. The two rights are complementary, but a full and effective right to vote also requires that political parties and candidates compete transparently and under rules applicable to all. So the legislation regulates election advertising on the premise that the public interest justifies the resulting restrictions on free speech. It also confers advisory and policing functions upon the Electoral Commission.

[2] Planet Key was a satirical song and video that but for the intervention of the ElectoralCommissionwould have been broadcast in the lead up to the 2014 general election. The Commission is said to have overreached by interfering in the expression of personal political views. Planet Key itself is now of historical interest, but the legal controversy that it engendered is not; the controversy concerns the meaning of the legislation that the Commission administers and it has significant implications for future elections.

[3] The Commission has brought this appeal to settle a difference of opinion in the High Court about the meaning of “election advertisement” in the ElectoralAct1993, and to clarify the meaning of “election programme” in the Broadcasting Act1989. The High Court judgments concerned are those of Clifford J in this case (Planet Key)1 and Mander J in Greenpeaceof New Zealand Incv Electoral Commission.2 Both were delivered in judicial review applications argued shortly before the 2014 election.

[4] The first andsecond respondents created the song and video respectively. The Broadcasting Standards Authority appears as intervenor to support the respondents.

[…]

Decision

[112] The appeal is dismissed and the declarations made by Clifford J are upheld in this Court, though for different reasons:

(a) The song is not an election advertisement for the purposes of s 3A of the Electoral Act.

(b) The video is not an election advertisement for the purposes of s 3A of the Electoral Act.

(c) The song is not an election programme for the purposes of s 70 of the Broadcasting Act.

(d) The video is not an election programme for the purposes of s 70 of the Broadcasting Act.

[113] The appellant must pay the respondents costs for a complex appeal on a band A basis andusual disbursements. We certify for second counsel.

Full judgment: fileDecision_21.pdf

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