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]