A lawyer’s view

Just had an e-mail from a lawyer, who is a senior partner of an Auckland law firm. He has agreed to let me reproduce his e-mail, but with name deleted while we still are allowed to have anonymity!

David,

You are right to say that the Bill as reported back is worse.

IMHO:

1. The deletion of section 5(1)(a)(iii) is meaningless as the same activity is already covered by s5(1)(a)(ii), which has been left in. It seems obvious to me that if one makes a statement about the “views, positions or policies” of a party or candidate one is “taking a position on a proposition with which 1 or more parties or 1 or more candidates is associated” (the deleted bit). Because under sub (iii) there is no need for a party/candidate to be mentioned and the test is objectified by referring to a “type” of party or candidate, it is pretty easy to argue that if one makes any supporting statement, then one is implicitly “encouraging or persuading voters to vote for …”

IOW, the strawman alone has been sacrificed.

2. The addition of the “bring to the notice of the public in any other manner” wording in the definition of publish makes it all the worse as you have said on your blog.

The stupid irony now is that you can say what you like on your blog (assuming its not commercial) but I can’t get in a room of people and say the same thing. In fact, I don’t even think it would need to be a room full of people – if I shouted out a supporting statement and it just so happened that only one person walking by heard me, that would be enough (Securities law has for years held that an investment is offered to the public even if it is made available to just one person who can be characterised as a member of the public).

What about driving around in a car which says “Get rid of Kyoto – Global Warming is Crap”. Seems to me that that is still caught. Or, what about “Raise the Private School Funding Cap” – Clearly Labour policy is to keep it and National’s is to raise it – caught again?

Actually, it is quite interesting when you try those examples. It seems to me that there is more likelihood of a negative statement being caught. i.e., statements against current govt policies are more easily caught than statements supporting opposition policies. In other words (I am sure inadvertently) the provision as it stands seems to prevent attacks.

“Kill the Bill” is easier to characterise as an attack on Labour (and therefore caught) compared to “Support Free Speech”, which is more difficult to argue as being an encouragement to vote for National.

Seems to me that a blog with a free membership option might be the way to go.

Regards,
XXX [name and address withheld]