Mai Chen, the founding partner of Chen Palmer, explores the possible flow-on effects for lawyers that the outcome of the fast-approaching September 20 General Election could have
Elections are always a busy time for lawyers. New Governments always mean new policy settings, and new legislation. Even if the National-led Government is returned in roughly its current form, there will be new confidence and supply agreements with support parties, new Ministers in new roles and new priorities.
Even if there is no change to the relevant legislation, the change in Ministers will inevitably be reflected in a change of approach by Government agencies, with downstream consequences for citizens and business – lawyers’ clients.
But the lead-up to an election can be an equally busy time for lawyers. So far, the Conservative Party has judicially reviewed the Electoral Commission’s broadcasting allocation decision for opening and closing addresses under the Broadcasting Act, which was settled after the Electoral Commission, varied the allocation in a way which resolved the Conservative’s concerns.
The Conservatives were also successful in obtaining an injunction effectively requiring TV3 to make room for Colin Craig at its leaders’ debate. More court cases may follow because electoral petitions seeking to overturn disputed electorate results or errors in the allocation of list seats may be filed with the High Court or Court of Appeal up to 28 days after the public notification of the result of the election.
Even organisations which are not political parties have found themselves in Court. Greenpeace and other groups under the Climate Voter banner sought declarations about the meaning of an ‘electorate advertisement’ under the Electoral Act in the context of issue advocacy. In Greenpeace of NZ Inc & Ors v Electoral Commission  NZHC 2135, the High Court declined to hold that issue advocacy was automatically excluded from the definition of electorate advertisement.
Rather, an advertisement was an electorate advertisement if it was “upon an objective assessment reasonably [to] be regarded as encouraging or persuading voters to vote for or against a type of candidate”. The Court’s Bill of Rights analysis concluded that “Parliament’s intended meaning insofar as it is inconsistent with the right to freedom of expression is a legitimate limitation on that right.”
In applying this standard, the Court determined that on the facts of the case, the Climate Voter website was an electorate advertisement, but another website critical of Hon Simon Bridges was not. The judgment should be studied carefully by issues advocacy groups.
Finally, Cameron Slater’s attempt to obtain interim orders against the hacker “Rawshark” and the media outlets that published the leaked material shows how difficult it is to obtain remedies once hacked information is in wide circulation in the public sphere, as Justice Fogarty pointed out. He granted Mr Slater an interim order against the unknown hacker preventing him from publishing any more information, on the basis that there is a prima facie argument that the information has been obtained illegally and the hacker should be restrained from committing further breaches of the law.
Justice Fogarty stressed in Judgment (no 2) of reasons delivered on 8 September that apart from s 249 of the Crimes Act concerning accessing a computer system for dishonest purposes, the common law can treat unauthorised access to information the same as entering private property and taking a person’s private papers.
He said the courts have to balance the breach of the law in the wrongful acquisition of the information against the public interest in examining the information once it is in the public sphere.
The Court did not, however, make interim orders against the media outlets and any leaked information they currently held. As Rawshark had said before the court case last Friday that he had given the media everything he had, even if the Court continues the injunction when the case is argued further today, there may be nothing left to injunct, leaving Mr Cameron with a Pyrrhic victory.
- Mai Chen, Chen Palmer Public and Employment Law Specialists.