Written By: - Date published: 9:11 am, October 10th, 2008 - 55 comments
Categories: activism -
Tags: vanity posts
National activist and pornographer Cameron Slater took a complaint to the Electoral Commission against myself and others who took part in a satirical protest outside the National Party conference. He complained that we had breached s63 of the Electoral Finance Act by making unauthorised use of the National Party logo and s65 by not authorising electoral advertisements.
A little bit of first year law for y’ll. Any offence (with a few specific exceptions) has two elements: mens rea and actus reas, the ‘guilty mind’ and the ‘guilty action’. In the case of breaches of the EFA, the actus reas is failing to comply with the physical requirements of the relevant sections (ie. not using a party’s logo and authorising electoral ads). The mens rea is doing so ‘willfully’. That’s a reasonably high test, higher than ‘recklessly’ or ‘negligently’ , for example. ‘Wilfully’ requires an intent to defeat or circumvent the objectives of the law.
The Electoral Commission found there was no wilful breach of s63 and s65, so no breach of the law. The Commission did not need to rule on whether the actus reas test was met. In obiter*, in says that an oral authorising statement might not be sufficent, that a physical authorising statement may be necessary. I am confident that even if the mens rea and actus reas tests had been held to be met the test in s70 (which relates to whether a breach of the EFA is more than trival and should be passed on to the Police) would not have been satifised.
The Right has, again, used one of their favourite intimiation tactics, the legal complaint, to try shut down free speech and they have failed, again.
*[a statement of law relating to the case that does not form part of the reasoning in the finding and so does not have the full force of precedent]
[read the EC's decision here and my correspondance with the EC here]
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deemac…that is true od the hordes of right whingers who have found that freedom is too much for them and so therefore because they cannot defend their own swingeing politics use this space to spam useless boring garbage to bore people to death with!
randal
Sorry dude but there is not supposed to be “left” vs “right” political considerations in how we interpret the law. Yes it very very sad that Steve P. gets on the wrong side of the EFA because he choose to speak his mind about National.
But lets be honest here – it’s the law (specifically the odorous EFA) that is being attacked here and by association the people who supported it without understanding the chilling effect it has on free speech. They thought it was great when it was going to silence the EB hey it was only the likes of the EB that it effected, not Steve P. and his Labour mates.
It’s ridiculous that Steve P. cannot say what he thinks of National without risking a court case. I didn’t support the EFA and I don’t think anyone who looked at it without partisan glasses did either. Did you? Do you still ?
no burt…SP told you what happened and you took it upon yourself to divert the argument into an attack on the EFA. why dont you ask your pal dr dewlap from kiwiblag or whalemeat to open their columns to have a debate on the EFA with the same freedom that is offered here. You know that they would choke on their debentures before they would ever let that happen. BUT while we are here it is necessary to have the EFA because it offers some protection from the noxious attempts to buy elections without producing any policy.
So, in summary…
Steve Pierson; Champion of the EFA, Defender of its virtuous intent, Quoter of its passages ad naueseum, somehow forgot and/or misunderstood components of said law.
After everything you’ve said in debates here on the EFA… how?!
Phil=concrete. i.e. thick and dense. have you read this whole thread phil and that is your conclusion or are you just erecting more flim flam so serious readers have to get past your blag first.. anybody reading this please ignore the previous post by phil and go back to my last post if you want a decent understanding.
Steve P.
I was up to speed with this legal requirement some time ago. I didn’t need the Electoral Commission to inform me that I had misunderstood it. Keep up Steve – it about you being wrong and being unable to admit it.
Sounds like you were lucky you werent refered to the police SP.
It would be a cunning loophole however, speak ones name and address just once for a whole protest.
I wonder what would happen if someone did a purely audible election statement (eg from a megaphone).. would they have to say their promoters details before every chant?
djp…you should be referred to the police as a bore and a nuisance.
and as for whalemeat (I missed his first post) he needs a brain implant…make that a double, for wasting peoples time and referring to the police on the same charge as you djp. boring people to death.
Steve P.
You said:
So I asked a lawyer friend of mine for an opinion on that. She said: ?Interesting question, it actually applies to both if you don’t know about it and if you don’t correctly understand it….it may provide a mitigating factor in the final outcome though.?
So it did provide a mitigating factor, nobody has argued that the Electoral Commission has acted inappropriately in not referring you to the Police as they have taken your word that as a ?reasonable person? you failed to comply rather than wilfully choose not to comply.
So sorry Steve, ignorance of the law is not an excuse. Ignorance is not just not knowing about ? it is also not understanding.
You really should stop calling me dumb when you are showing yourself to have a less complete understanding of this stuff than I have.
randal you seem pretty angry for such a bored person. if you were actually bored you probably wouldnt reply… no need to get nasty
they aren’t bored; there are only two possible explanations for the incessant right wing trolling: either they are sad people with no life and nothing better to do, or they are being paid.
or it could be the fact that everyone loves to say “I told you so”.
also who could resist Steve trying spin that the vrwc (vast right wing conspiracy) is somehow “attacking democracy” using a law that Labour and co passed.
Deemac – if my posts contributed as little constructively as yours, the BOFH would be whupping my ass!
Far from trolling, there has been a consistent line of comment that the right wants to get rid of the EFA because of its impact on freedom of speech.
Your last comment in particular is no better than insinuating someone is working for Helen or works on the 9th floor. Consider yourself warned and go read the About pages.
Seriously, try arguing the points that have been consistently made by many:
- the law is an ass
- the law is limiting freedom of speech
- SP and others simply can’t or won’t face up to these issues because they can’t admit they’ve got it so wrong
As for incessant – the questions keep on getting asked because you and your colleagues aren’t answering them. Not that you are being slippery of course!
“[burt. I seem to remember about half a year ago commenting that of our regular commentators you are the dumbest. Our readership has tripled in that time but you've managed to maintain your position, well done. You're the only one of the regulars who still hasn't got up to speed on the legal substance. SP]”
SP, I see you’re still not above throwing your toys out of the cot.
How about your grow up and realise that not everyone who doesn’t agree with you is “dumb”.
I’d ask LP to give you some lessons but unfortunately his activism is showing.
Phil:
“Steve Pierson; Champion of the EFA, Defender of its virtuous intent, Quoter of its passages ad naueseum, somehow forgot and/or misunderstood components of said law.
After everything you’ve said in debates here on the EFA how?!”
Because he’s willfully ignorant about it of course. Because it suits him to be so.
[lprent: I am a activist - always have been to one degree or another. Mind you fitting it in amongst all of my other activities is always a bit of a pain. ]
“Winning is everything, despite our highly principled statements…”
God’s little baby boy wept. I know right wingers fancy themselves as being the natural holders of power an’ shit, and that protest doesn’t come naturally to them, but I didn’t think it overheated their poor wee brains this much.
If you want to protest the injustice of a law, willfully break it yourself , and make a big ‘ol drama about what happens next.
That way you can say “All we was doing was this, and look at what happened. So unfair!”
The absolutely wrong way to protest the injustice of a law is to use it against your political opponents.
Do it this way you have to give the rather confused message, “All our opponent was doing was this, and we chose to do that to him, hah!”
Of course the first option, while effective, requires certain personal qualities waily boy and the whambulance crew seem to be a little short of.
PB:
“God’s little baby boy wept. I know right wingers fancy themselves as being the natural holders of power an’ shit, and that protest doesn’t come naturally to them, but I didn’t think it overheated their poor wee brains this much.”
I hate to shatter the fairy tale world you live in but unfortunately for you not everyone who oppses the EFB is a right winger.
Once you’ve gotten to grips with that then feel free to say something sensible.
” ..unfortunately for you not everyone who oppses the EFB is a right winger.”
Thankfully I never said anything like that, so you know, phew.
Looks like I touched a nerve though. Sorry Dean, if you felt I was demeaning the honest principled intentions of whoever. I only meant to say that they needed to rethink strategy. The one they’ve got is stupid. You can’t make a martyr for your cause out of your opponent. You have to make your opponent martyr you.
So Cabinet Minister Shane Jones has been referred to the Police for saying “Vote Labour – see you in November” on radio.
Do we live in Nazi Germany or Stalinist Russia?
GET RID OF THE EFA!
[lprent: Nope - I'm coming to like it. Hell I'm even starting to get used to the hordes of skulkers.]
Pat
Don’t be like that. It’s an extremely serious thing when an MP says “Vote for [political_party_name_here]“. It’s just not on, and the Police need to be involved.
It is obvious this was the intent of the law because if it wasn’t then it wouldn’t just be the same old ‘anti EFA’ crowd barking about it. Clearly lprent and Steve P. knew this would happen and they wanted it to be that way or they would not have supported Labour passing the EFA. Come on, just because Shane Jones voted for the EFA why would you expect him to understand it’s implications.