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.