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Dear Greenpeace – difficult cases make bad law

Written By: - Date published: 12:06 pm, July 15th, 2014 - 55 comments
Categories: blogs, climate change, democracy under attack, disaster, global warming, you couldn't make this shit up - Tags: ,

“Difficult cases make bad law” is an old saying I first heard in Law School. The essence is that a case with difficult facts may cause the decision maker to prefer to side with the party who invokes sympathy, rather than the party who may have law and important principles on their side.

I mentioned this saying when I posted previously that I thought Cameron Slater had an arguable case when he complained about a ruling that his website did not qualify as “news media” because no matter how slanted and twisted his site is it does report news, at least of sorts.

Just to make things exquisitely clear I believe that Slater’s treatment of Matt Blomfield has been appalling and I trust that the laws of New Zealand will be enforced without favour and Slater will face the full consequences of what he has done.  But adherence to the rule of law means that you comply with the decisions that don’t go the way you think they should.

This is why Greenpeace’s recent proposals are also causing me problems.

Greenpeace have set this really neat website up called Climate Voter Website which allows individuals to sign up to keep track of parties policies on climate change.  I have signed up myself as the issue is important.  The site aims to “empower climate concerned citizens to use their vote in the September 2014 election to make a difference for the good of present and future generations.”

So far so good.  But the Electoral Commission considers that the website constitutes an “election advertisement” and is therefore subject to a number of legal requirements.  In the Commission’s view Greenpeace should apply for third party registration if it is going to spend more than $12,300 and there is a cap of $308,000 that it can spend during the campaign.  Proceedings are contemplated by Greenpeace seeking a declaration that the website does not breach legal requirements.  The matter is obviously of importance.

Is the site an election advertisement?

Section 3A of the Electoral Act 1993 contains this definition:

3A  Meaning of election advertisement
(1)  In this Act, election advertisement—
(a)  means an advertisement in any medium that may reasonably be regarded as encouraging or persuading voters to do either or both of the following:
(i)  to vote, or not to vote, for a type of candidate described or indicated by reference to views or positions that are, or are not, held or taken (whether or not the name of the candidate is stated):
(ii)  to vote, or not to vote, for a type of party described or indicated by reference to views or positions that are, or are not, held or taken (whether or not the name of the party is stated) …

(2)  None of the following are election advertisements:

(c)  the editorial content of …
(iii)  a publication on a news media Internet site …
(e)  any publication on the Internet, or other electronic medium, of personal political views by an individual who does not make or receive a payment in respect of the publication of those views.

On the face of it the Greenpeace site is trying to persuade voters to vote for parties that will do something about climate change.  How utterly rational and desirable is that?  But persuading voters to support the types of parties that are protective of the environment would appear to qualify under section  3A(1)(a)(2) of the Act in that there will be support expressed in the website a particular type of party, the environmentally protective and sustainable sort.

Do the exceptions apply?  Is the Greenpeace site a news media internet site?

Well possibly.  It is a site that contains information and a description of views although the Electoral Act does not contain a definition of what “news medium” is.

The Evidence Act 2006 does however.  In section 68 “News Medium” is defined as “a medium for the dissemination to the public or a section of the public of news and observations on news”.

But how bizarre is this?  The decision in Cameron Slater’s case which depends on the definition of “news medium” will be of important precedence value to Greenpeace.  Slater is relying on his site being “news media” so that he can protect what he claims is a Journalist’s source.  Greenpeace is hoping that its site is “news media” so that it does not have to register as a third party.  If Slater succeeds then Greenpeace’s claim will be stronger.

Slater has a further problem in that he has to fit within the definition of a “journalist”.  I would be interested if he is “a person who in the normal course of that person’s work may be given information by an informant in the expectation that the information may be published in a news medium”.  If he is currently being paid to do his work then some sort of transparency would be good.

Of course this is not the end of the case for Slater.  The Court can still waive privilege if it believes this to be in the public interest.

As for Greenpeace although my political instincts prefer they do not have to register I wonder about the precedent effect.  Its site does at face value appear to have a different emphasis to Slater’s.  One is high quality and wanting to detail political views of each of the parties.  The other is a cess pit of innuendo and attacks and smears.  It does not feel right that the creator of one should need to be registered and the other is protected but the differences in the emphasis may demand this result.

And to take the argument to its logical extent what if a front organisation set up a comparable website supporting climate denialist parties or parties that believe in chemtrails or that Elvis is still alive and well and living amongst us?  Would we want some transparency about who was behind these sites?

Rather than have different rules for different organisations I prefer that all such websites operate under the same rules.  They should have the backers formally displayed, which the Greenpeace site does, and have a cap on their expenditure.  With the cap at $308,000 I cannot imagine any progressive organisation being impeded in what they want to achieve.

55 comments on “Dear Greenpeace – difficult cases make bad law ”

  1. lprent 1

    I’m with Idiot/Savant on this.

    I think that they clearly should. I really don’t think that the Act leaves them a lot of wiggle room. The intent of the act is pretty clear.

    But again there is that rather irritating use of “news media internet site”. This is an advocacy group, but because they use a bit of cheap bandwidth they can call themselves news media? Surely it is the other way around in this act. You have to show yourself to be news media who have a internet site?

    The term is probably a bit more specific than “news medium”

    • Jackal 1.1

      Climate Voter isn’t a news service per se and they aren’t promoting any specific type of party.

      Climate Voter isn’t giving any precedence to one policy over another to cause people to vote, or not to vote for a particular type of party.

      You could argue that some party’s have better climate change policy than others, but that’s not what Climate Voter is doing.

      That’s why the Electoral Act doesn’t apply.

      • lprent 1.1.1

        I agree about the news media internet site biit.

        Clearly the electoral commission doesn’t think so within the Act.

        Nor do I for that matter. Nor I suspect would any lawyer or justice reading that legislation.

        To push a particular course of action at a policy level and then to grade political parties with differing policies is to do exactly what that section of the Act was seeking to constrain.

        You could use your argument to say that asset stripper companies during an election throwing millions of dollars behind the idea that the government should sell all schools don’t have to be controlled using your argument.

        • Jackal 1.1.1.1

          Hypothetically speaking, do all political parties have asset stripping legislation?

          • lprent 1.1.1.1.1

            Yes and no. Most of them will sell some stuff if the price is right. But almost every party apart from Act have things that they won’t sell.

            • Jackal 1.1.1.1.1.1

              The answer is clearly no 1prent. Therefore an organisation or person who was receiving or making payment for an asset stripping campaign that targeted people to vote for or against one type of political party would normally be covered by the Act.

              However I think the main area where Idiot/Savant, the Electoral Commission and your argument is a bit weak is that Climate Voter isn’t being biased in favour of any particular policy or type of party. They’re giving equal attention to all responses, which to my knowledge aren’t graded? Another area where the argument against Climate Voter isn’t consistent with the Act is that they aren’t making or receiving a payment in respect of the publication of views.

              Neither is Bryan Bruce’s Survey Of Political Parties On Child Well-Being Issues or the New Zealand Aged Care Association when they question exactly where political party’s stand on issues they’re concerned with:

              We asked each Political Party to indicate their commitment to four key policy areas we believe are essential to ensure that access to quality care will continue to be delivered in future.

              You cannot honestly be arguing that if politician’s actually respond to that question it would mean ACA’s website becomes an election advertisement and requires a promoter statement etc? That’s about as ridiculous as it gets.

              Unless you can show that section 3A(2) (b)(iii)(iv)(v)(vi) and (e) of the Act somehow doesn’t apply, that would mean the information contained on these and the Climate Voter website aren’t election advertisements under the current law.

              Isn’t it amusing how the Electoral Commission has used a tweet by the Act party saying; “Climate change is an issue that won’t be solved by sabotaging our economy” to try and say Climate Voter is trying to persuade voters to vote or not vote for a particular type of party.

              I guess they just don’t understand how twitter or embedded comments work? It would be a bit silly if the Electoral Commission expected every tweet to have a promoter statement, or that those tweets couldn’t be shared or that politicians should not be allowed to tweet a response to a question. Because that’s what we are really talking about here, the severe curtailing of our freedom of speech and democracy in general.

        • I think the climate voter case is really interesting. While I don’t object at all to them having to carry a promoter statement, I think it’s actually really bad if a spending limit applies to a “loudspeaker” site like Climate Voter, that while it asks a certain type of question, repeats the answers of politicians verbatim and in context, with no editorialising.

          This may be a case of a simple blind-spot in the law, as Climate Voter is really neither an issues-based promotional site in the traditional sense, (ie. it assumes the climate is important to its audience’s vote, but it never editorialises or characterising politicians points of view) nor is it exactly a news service.

          Hell, if Twitter charged microtransactions, you could run afoul of the electoral law for just retweeting anything political. I shudder at the thought of what could happen if we do have some sort of social media in the future that requires transactions to function.

  2. karol 2

    Greenpeace is wanting it both ways, in order to appeal to MOR Kiwis – be both a political advocate, while not wearing a POLITICS tag.

    It seems to me it would be easy enough for them as a well organised outfit, to have an authorisation notice on the site.

  3. shorts 3

    I don’t understand why Greenpeace doesn’t just comply with the Electoral Commissions request – its not a onerous process is it?

    • Cancerman 3.1

      Now I may be wrong but wouldn’t this have an effect on their tax/charitable status which has been an issue for them?

      • lprent 3.1.1

        Why? They are no longer a charity at present by a previous ruling, and it is on appeal.

        Leaves them free to do whatever they want.

        Since their basis for the appeal to the supreme court is that they are an advocacy charity seeking better conservation measures, then this fits exactly into what they are doing. But of course Greenpeace isn’t the only organisation in the Climate Votes. So I’d expect that would be the reason.

        Oh I see, you’re channelling some well known legal nitwits…

        • Jenny 3.1.1.1

          It is my understanding that it is in their international charter that Greenpeace are not to be “political”. That is Greenpeace cannot become a political party or support a political party.I take this to mean that by their own international charter Greenpeace New Zealand are bound to be strictly non-sectarian and non-partisan.

          Overseas this charter to be non-partisan has been defined more narrowly than here.

          Greenpeace New Zealand is a bit of an outlier doing a number of things that have pushed the envelope on a number of local initiatives. The strategic alliance brokered by Mike Smith between Greenpeace New Zealand and Te Whanau a Apanui to defeat Petrobras was something unique for Greenpeace in the world.

          And it proved to be a winner. I think it is an initiative that Greenpeace International could and should emulate.

          But for the purposes of Climate Voter I think Greenpeace are adhering to their charter to be politically non-partisan. If the National Government miraculously started announcing radical policies to reduce green house gasses (or even just moderate ones) they would get the proper amount of coverage and reportage for such an initiative from Climate Voter. This is where the legal challenge against Greenpeace falls down, in claiming that in hosting Climate Voter they are being partisan,

          It is the complainants who are being partisan in trying to stop this issue to be raised.

          And National are not the only party that are interested in doing this as shown from the last election.

          Something had to be done.

          And thank goodness, this time someone is trying to do something about it.

          The snake that swallowed the elephant in the room

          You know what really strikes me about climate change in the election? It’s the absence. It is as if climate change is nearly completely absent from the campaign. When climate change does pop up, it’s portrayed in simplistic soundbites.

          Nick Smith (National) says anthropogenic climate change is real and complex and ‘wicked’. But promises more moderating, balancing and delaying of the NZETS.

          Labour says anthropogenic climate change is real and we will fiddle with some NZETS details for agriculture slightly earlier than National as farmers don’t vote for us anyway.

          The Greens say anthropogenic climate change is real and we have a detailed wonk-friendly exposition on our website, but for this election we are running with “jobs, kids, rivers”

          Simon Johnson at Hot Topic

          In my opinion climate change and the lack of action against it, as as an issue at least as important as inequality.

          Climate Change is an issue that Labour and National don’t want raised, because their policies are very similar. Last Sunday on the TV3 panel Jeanette Fitzsimmons complained that she would struggle to fit a piece of tissue paper between Labour and National over climate change, a fact that Labour in particular don’t want examined by the electorate.

          In the last elections the Green Party deliberately shied away from raising climate on the grounds that they didn’t want to be seen as extremists. Time has moved on, this time round the Green Party has publicly officially dumped this policy. With Green Party leader Russell Norman formally announcing that climate change will be an election issue.

          Climate Politics in the NZ election of 2011

          “The snake has swallowed the elephant in the room”

          You know what really strikes me about climate change in the election? It’s the absence. It is as if climate change is nearly completely absent from the campaign. When climate change does pop up, it’s portrayed in simplistic soundbites.

          Nick Smith (National) says anthropogenic climate change is real and complex and ‘wicked’. But promises more moderating, balancing and delaying of the NZETS.

          Labour says anthropogenic climate change is real and we will fiddle with some NZETS details for agriculture slightly earlier than National as farmers don’t vote for us anyway.

          The Greens say anthropogenic climate change is real and we have a detailed wonk-friendly exposition on our website, but for this election we are running with “jobs, kids, rivers”

          http://hot-topic.co.nz/call-the-cops-neville-chamberlain-only-went-to-munich-once/

          Simon Johnson at Hot Topic

          • lprent 3.1.1.1.1

            That may be the intent. However I suspect that the Electoral Commission and courts will look at the effect rather than the intent.

            • Jackal 3.1.1.1.1.1

              The intent of the Climate Voter campaign is to raise awareness about climate change issues as they relate to our political process. The effect will be to raise awareness about each party’s political position on climate change. It’s the position of each political party that will determine how people vote, not the Climate Voter campaign itself.

              It’s doubtful that a judge will ignore the fact that Climate Voter has been entirely unbiased in the way they present information (which is already freely available online) and determine that the campaign is an election advertisement.

              A judge will also hopefully have a better understanding of how the internet works and won’t have a vested interest in determining whether they have jurisdiction over such matters.

              Jenny

              Last Sunday on the TV3 panel Jeanette Fitzsimmons complained that she would struggle to fit a piece of tissue paper between Labour and National over climate change, a fact that Labour in particular don’t want examined by the electorate.

              I think you’ve hit the nail on the head there Jenny.

  4. McFlock 4

    we-ell they could play silly buggers and just phrase it as illustrating different party policies on climate change, and if someone wants to vote against the environment then that’s the voter’s choice.

    But if they twitch a bit too far then they’ll get pinged, so it would seem to be easiest to just put the damned statement on and register a cross-organisational group to handle the website.

  5. red blooded 5

    This issue was discussed at high levels in my (education) union some years ago. We were also publicising party policies, and did provide some commentary. We had always identified ourselves in advertisements etc – we signed up as a 3rd party. It was borderline – none of our material explicitly promoted a particular party, but we were a legitimate pressure group and it just made sense to be open about it.

  6. Ad 6

    Why don’t they just say “Vote for the Green Party”?
    It’s dishonest as it is. Just front up.

    Otherwise it’s all getting very Exclusive Brethren redux.

    • Draco T Bastard 6.1

      The Green Party isn’t the only one with green policies.

      • Tracey 6.1.1

        But of the existing parties they are the one who had some first, and the move from there to today from all parties is why MMP is crucial, and why the right hates MMP

      • Granted, but it’s the only one with a substantial set of Green policies or with any bankable credibility on Green issues.

    • Macro 6.2

      If you consider that the existing ETS and the targets for GHG emission set by the current government are sufficient then you can still say “yes” to taking action on Climate Change and vote accordingly. The advertisement has not asked you to vote for any political party – but it has asked you to consider the issue.

      • Jackal 6.2.1

        You can’t just ask people to consider environmental issues these days Macro, because the policy wonks will freak right out!

  7. Richard@Down South 7

    I wonder how the law would treat it if it was a .com site hosted in the US

    • lprent 7.1

      Not really differently. It is who is responsible that makes the difference. If they are here then they are responsible.

  8. RJL 8

    You are not looking at this issue like Greenpeace; you have to remember what Greenpeace et al are trying to achieve and take into account that they are not afraid to break the law to make a point.

    For Section 3A ii) of the Electoral Act to apply the High Court will need to conclude that no reasonable person could possibly vote for National (say) on the basis of their climate policy.

    The Electoral Commission have apparently already concluded this, also receiving a High Court judgement that states this sounds like a total and utter win for Greenpeace et al.

    • Jenny 8.1

      “For Section 3A ii) of the Electoral Act to apply the High Court will need to conclude that no reasonable person could possibly vote for National (say) on the basis of their climate policy.”

      Absolutely right RJL

      The government are on a hiding to nothing on this. By taking this action, (no matter who is the mover) it is a huge admission that the government are doing nothing about climate change.

      And are therefore vulnerable on this issue.

      (If only the opposition parties would lose their fear of the fossil fuel lobby and really start to take advantage of this government vulnerability.)

      Good on Greenpeace for mounting a legal challenge against them raising this issue.

  9. Macro 9

    Firstly – It is not just Greenpeace that are involved in the Climate Voter Website. The other environmental organisations are Generation Zero, Forest and Bird, Oxfam, as far as I can recall. All of whom are fiercely apolitical – although their aims may appear to support left wing ideals more than right at the moment.
    Secondly the aim of the website is to promote the consideration of Climate Change as an issue for the election. It simply asks people to give due consideration to this issue when they cast their vote. Does that constitute saying vote a. or b. – don’t vote c? Which it appears is where the the Electoral law would be compromised.
    For instance a person could well claim that they wished to take the issue of climate change as a priority and vote National – after all there is such a thing as an ETS and National have stated “Targets” for emission reductions. Whether or not these are sufficient is up to the consideration of each individual.

    • Tracey 9.1

      Then using the word vote, or the phrase vote for, may have been a mistake.

      Getting the site quite alot of publicity this way…

      • Macro 9.1.1

        I don’t see that using the word “vote” or even “vote for .. ” as used is a problem at all. They are not advocating any particular party or parties. They are just saying

        “Being a Climate Voter means you care about climate change and you want all political parties to do something about it. 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 is a non-partisan initiative powered by an alliance of New Zealand organisations. It aims to empower climate concerned citizens to use their vote in the September 2014 election to make a difference for the good of present and future generations.”

        They are not advocating any party here, they want ALL parties to work on climate change.

        They ask all people who are concerned about Climate Change to think and say they want to vote on this issue in the Election.

      • Macro 9.1.2

        Yes it is getting more attention, numbers increased by 2000 over the past day. 🙂
        But it was NOT the Climate Voter group who initiated this – their request to the Court for clarification is in response to the Electoral Commission who say that the campaign counts as an “election advertisement”, and is therefore subject to rules around wording of communications and spending restrictions.

  10. Steve Wrathall 10

    Greenpeace, Generation Zero, Forest and Bird, Oxfam pretending they’re not political. Isn’t it adorable?

    • RJL 10.1

      What is more adorable is DPF (and perhaps yourself) arguing that National’s climate policies are neither credible nor effective policies.

    • Draco T Bastard 10.2

      ^^^ Steve Wrathall pretending that he’s actually got a point. Isn’t it adorable?

      • Jenny 10.2.1

        It is said that Trotsky once said licking a postage stamp is political. I think that International Greenpeace International has been a bit prissy about not getting involved in politics. Good on Greenpeace NZ for getting their hands dirty.

    • Totally political, but absolutely not partisan, and absolutely not electioneering. They’re not advocating any particular solutions, just informing voters on an issue that many of us are passionate about- tell me, if you had a few right-wing organisations band together to say, ask parties questions about tax policy, and they never commented on the answers to said questions, would it really be fair for anything spent on that to come out of their spending caps?

      I don’t think it would be.

  11. Jackal 11

    Funny how the Electoral Commission is going all ballistic at Climate Voter for raising people’s awareness about climate change, while they did bugger all to nothing about Owen Glen committing the offence of bribery on national TV when he said he would donate at least $100 million to the government if National and Act won the 2011 election. As bad as that boldfaced bribery was, the conman hasn’t even fronted with the cash.

  12. Sable 12

    Since when were the so called laws in this country applied fairly and evenly, give me a break….

    A broken justice system in an increasingly dirty and corrupt country…

    • mickysavage 12.1

      I am not worried at the proposal that Greenpeace should register. Registration means that they have an address on the site, file an application for third party registration and keep under the $308k cap.

      I would prefer that the same sorts of rules applied to everyone.

      • Jackal 12.1.1

        Really? You would prefer that anonymous bloggers had to provide an address to be able to publish anything political?

        • Andrew Geddis 12.1.1.1

          Bloggers are exempt from the defintion of “election advertisement” – see s.3A(2)(e).

          • Jenny 12.1.1.1.1

            The Streisand effect

            Hello Dolly!

          • Jackal 12.1.1.1.2

            You will note that mickysavage’s comment was concerned with “everyone” not just how the Act currently applies. I was pointing out one reason why the Act shouldn’t apply to everyone.

            • mickysavage 12.1.1.1.2.1

              I agree that us humble unpaid bloggers should enjoy an exemption.

          • Jenny 12.1.1.1.3

            You make some good points Andrew.

            I have just read you post on pundit.

            http://www.pundit.co.nz/content/ive-made-a-huge-tiny-mistake

            I started reading with a skeptical eye, but I have to agree, the hypothetical example you gave of a group of rich business men funding a campaign around the TPP makes some sense.

            I was reminded of the very real $multi-million dollar campaign by wealthy businessmen and headed by ex-telecom chair Peter Shirtcliff against MPP which was very nearly successful.

            I will take your thoughts on board.

            P.S. I was heartened to hear that your vote will be influence by which party has the best policies on climate change.

            FYI So far the only political party to officially endorse the Climate Voter campaign is the Mana Party. Hone Harawira the Mana Leader is the only party leader to have officially congratulated Greenpeace for this initiative and has urged all Mana members to sign it.

            http://mana.net.nz/2014/07/protecting-papatuanuku-a-priority-for-mana-harawira/

          • lprent 12.1.1.1.4

            I know. However that is for what we write. If you look at the junk that we have strewn on this site from the unauthorised Climate Vote advertising banner to my amused satirical images on the right, I prefer to be paranoid, cautious, and have a catch-all notice at the bottom of every page.

            Not having to waste time to argue with the electoral commission or do a Cam Slater and/or spend my life in court makes that authorisation notice seem like the easier option. Especially since my name and address are all over the DNS records anyway.

            • Jackal 12.1.1.1.4.1

              Not to dismiss the Climate Voter’s very good argument that its websites aren’t “election advertisements”, but you seem to be ignoring the fact that the campaign is raising even more awareness by taking the issue to the high court. I somehow doubt the same situation would apply to The Standard.

              • lprent

                Yep. But the question is if the exorbitant QC fees are cheaper than a advertising campaign?

                Based on my previous exposure to them, then I suspect that much cheaper public awareness campaigns are possible within the period before the election (because that is an issue that is likely to take many years to resolve in court).

  13. Jackal 13

    Further reading:

    27 June 2014 – Letter to Electoral Commission requesting an opinion on Climate Voter
    http://www.climatevoter.org.nz/documents/To_Electoral_Commission_re_Climate_Voter.pdf

    2 July 2014 Letter of response from the Electoral Commission
    http://www.climatevoter.org.nz/documents/287_Advisory_Opinion_-Greenpeace-_climate_voter_website.pdf

    14 July 2014 – Climate Voter response to the Electoral Commission
    http://www.climatevoter.org.nz/documents/Letter_to_Electoral_Commission_14_07_14.pdf

  14. Draco T Bastard 14

    After some thought on this, I’ve decided that I agree with Andrew Geddis.

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  • New Zealand Government acknowledges 175th anniversary of Battle of Ruapekapeka
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