Skip to content

Posts tagged ‘electoral law’

A quick note on the Climate Voter judgment

Here is Greenpeace’s and Climate Voter’s press release on the High Court’s decision today. Here is the High Court decision.

According to Greenpeace, “The ruling confirms the core legal argument that the Electoral Act was not intended to capture normal issues-based advocacy.” Here’s what the judge actually said. I’ve tried to pick quotes that are properly representative of the analysis, so if these seem incoherent, read paragraphs 52 through 57 of the judgment.

The application of such nomenclature as “issue advocacy” also does little to confine or clarify the boundaries of the statutory test.

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.

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.

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.

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.

Climate Voter is trying to claim this as a moral victory by saying the Court accepted its “core” argument. In reality, the Court said that it agrees that issues-based advocacy wasn’t the target, but that that observation doesn’t help very much with drawing a line between what is and isn’t an election advertisement.

But here’s the problem. Pure issue-based advocacy was never the question. No-one ever said that Parliament intended for pure issue advocates to be caught in the net. The reason the Electoral Commission concluded their website was an election advertisement is because its homepage included these words:

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 may have been advocating on an issue, but they were also encouraging people to vote in a particular way. They sought to narrow the definition to exclude them, and the High Court rejected that approach.

I’ll admit, I was hoping the Court would go further than it did (para 90) and simply reject the logic that wanting “all parties” to do it means it’s not for a “type of party” in any non-hypothetical world, as Professor Andrew Geddis explained. But it remains that the dispute was always about the facts of this case, not some abstract notion Climate Voter was chasing about issue-based advocacy.

They could, if they had more discipline, be the sort of organisation that Parliament decided shouldn’t be caught up in the select committee stage of the Electoral Finance Bill when it excluded the criterion, “taking a position on a proposition with which 1 or more parties or 1 or more candidates is associated”. But it chose to do a lot more than that and it’s being treated accordingly.

I admire what Climate Voter is doing, but the spin they’re putting on this question of electoral law is astonishing. If I were them, I would proudly say that the issue is important enough to campaign for in the election and behave like a promoter. I’m not really sure why they’ve been so insistent that electoral law shouldn’t apply to them.


Freedom of speech, if it’s me that’s speaking

The Climate Voter initiative wants to think that electoral law doesn’t apply to their campaign. They’re wrong.

There’s been enough commentary on why the six groups comprising the Climate Voter initiative are obviously wrong, so I won’t rehash the analysis here. In a nutshell, Climate Voter disagrees with the Electoral Commission’s opinion that, because their campaign is electoral advertising, they must comply with the relevant Electoral Act provisions. They seem to think being “non-partisan” makes them exempt, but as many have pointed out, that is both dubious and irrelevant.

I don’t have anything to add to those several commentators, except that this feeds into a more general obsession of mine: cases where people claim to support principles “above” political persuasion, like freedom of speech, but in reality only do so when it’s convenient for their cause. I called the anti-asset sales campaign out on this late last year. Their refrain was about electoral mandates. Conveniently, these parties (Labour and the Greens) had already shown their willingness to ignore popular opinion in the smacking referendum in 2009. Journalists had also pressed them on the inconsistency, so there was a wealth of backpedalling comments by them ready to be pounced on.

Matthew Bruenig has commented on this general topic in the American context with respect to free speech and market coercion of opinion. I’m tempted to include sovereignty arguments in the mix too. It’s not strictly a procedural argument like free speech and electoral mandate, but it shares some characteristics. It’s about power, in this case what power a country should “give up” or retain. It comes up often with TPP opponents in New Zealand, who conveniently forget about human rights treaties we sign up to and the loss of sovereignty there. People who make sovereignty arguments do so because they sound generic, but it only seems to matter when they disagree substantively with a policy.

I try not to accuse groups of inconsistencies before I can point to some specific demonstration of it. But I would bet anything that, if there was a pro-business group that ran a “non-partisan”, “issue-based” campaign, Climate Voter supporters would be outraged if they could sidestep third-party electoral advertising laws. On Pundit, Andrew Geddis compares this case to the Exclusive Brethren case that motivated these laws in the first place. Accordingly, I’m cynical about Climate Voter’s concerns about “wider issues” of freedom of speech and “civil society groups”. Of course, they could just say now that they’d be happy for a right-wing (say, free trade) campaign to do the same as them. To my knowledge, despite the point being made by several commentators, they haven’t done so.

Rather, their reaction to the reactions is to claim that “there’s no clear consensus… a real lack of clarity exists”, “it could have huge implications” (relevance unclear) and “it’s a complex issue” (it’s really not). This is odd. Only one of the six commentaries Greenpeace cites argued in their favour. Two who are sympathetic to climate change issues are unequivocal, including Professor Geddis, who “just can’t, for the life of me, see how what the Climate Voters coalition are doing falls anywhere but smack in the middle” of the definition of electoral advertising. Greenpeace and Generation Zero are correct that the decision affects other groups, but that’s not an argument. If there is any lack of legal clarity, they are shy on how it arises.

I should say, I’m glad that at least some commentary pointing out that Climate Voter is wrong is from left-wing commentators (other than law professors) who support their campaign. This makes me happy not because they’re left-wing, but because it shows there are people who really will uphold value-agnostic principles even when their own side is affected. I wish there were more people like this.

To be honest, the point of this post is just to record it in a collection of cases where stances on procedural matters are dependent on substantive opinions. I normally don’t bother blogging if what I want to say’s already been said, but you’ll forgive the exception here.

Anti-EFA brigade overreacting to warning to website

Resistance to the Electoral Finance Act (EFA) is not without reason—posts in this blog have been critical of it—but opponents must now realise the line between reacting and overreacting.  The Electoral Commission’s warning to webmaster Andrew Moore did not concern the EFA’s most controversial clause.  On the contrary, it concerned quite possibly the only reasonable requirement of the new law.

The website has a self-explanatory title “Don’t Vote Labour” and breaches the Act by not having the name and address of the publisher on it.  It is a requirement that has always been, one that has existed for years for billboards and print adverts without public complaint, before the internet became widespread.  Times have changed, and the law has to keep up by demanding the same standards of what is now an equally influential medium.

The point here is not about the name-and-address requirement, but that in their desperation to find something to criticise, the anti-EFA activists are promoting a double standard.  They must apply the same rules to campaign websites as billboards, print and broadcasting: either they all should require a name and address, or none of them should.  If the latter applies, why weren’t they campaigning to repeal that requirement before?

EFA opponents must conduct themselves with a sense of rationality if they are to succeed.  They need to argue with the facts, rather than with random statements.  Whaleoil’s claims that t-shirts and bumper stickers will breach the law and that webmasters have to “register” are symptomatic.  Even Helen Clark would admit that t-shirts and bumper stickers don’t “encourage or persuade voters”, as in the EFA’s definition of election advertisement.  And webmasters don’t have to register unless they spend more than $12,000, they only have to print their name and address on the website.  By publishing such hopelessly misleading statements, EFA opponents risk falling from the moral high ground, just like the Labour Party did after the 2005 election.

The law is right to excuse personal political expression in blogs, for the simple reason that the common citizen should not need to worry about regulation.  The Don’t Vote Labour, though, is not just political expression, it is a full-on campaign.  Like donators, campaign leaders should not fear identification if they truly believe in what they are doing.

The warning to the Don’t Vote Labour website is likely to be the tip of the iceberg.  Rather than seize on the small stuff, EFA opponents are far better off waiting for more meaty cases.  Cases of ordinary citizens, not deliberately trying to flout the law, but getting caught up in a maze of regulation nonetheless.  It’ll happen.  The EFA is a mess and will turn out messy cases—but it has yet to do so.

Related Links
Earlier related posts (in my other blog)