The lark's on the wing; The snail's on the thorn

The Planet Key song and video can be watched, played on the radio and shown on TV without any restrictions at all. It's great that a judge has been able to make the law say what it should do.

Turns out that, contrary to what you may have read in some dark corners of the interweb, you can slate Key on the radio. Because Clifford J has just released a magnum opus of a decision - 75 pages! 239 paragraphs! - in Watson and Jones v Electoral Commission that both clarifies the law's controls on political speech and gently corrects the way that the Electoral Commission has been interpreting and applying that law.

I'm not going to analyse the judgment in detail because it is accompanied by a media release that summarises it better than I can. However, if there are any law students out there who want to see what modern statutory interpretation in a New Zealand Bill of Rights Act context looks like then I urge you to read the full judgment as a masterclass of the art.

I'll also note that on the two questions at issue in the case - were the song and video an "election advertisement" under the Electoral Act and were they "election programmes" under the Broadcasting Act - I was right about one and unduly pessimistic on the other. I said at the time that I didn't think that the song and video were "advertisements" in terms of the Electoral Act and so couldn't be "electoral advertisements" for the purposes of that legislation. But I also thought that they probably would be found to be an "election programme" because: may be that you might be able to find some judge who thinks this outcome (banning a satire song from the airwaves) is so bad an outcome that she or he is prepared to twist and bend the Broadcasting Act provisions to stop it from happening. Maybe, for instance, they could cram the song's message into the s.70(3) exception for "news or ... comments or ... current affairs programmes". And they could rely on the New Zealand Bill of Rights Act, s.6 interpretative command in order to try to do so.

But I think that such an act of judicial surgery is less-likely than more. My bet would be that a judge confronted with this case would feel compelled to say that Parliament's intent here is clear, even if suspect. So even if they don't like the outcome, a judge is going to say that they have to apply the law as it is written and find this to be an unplayable election programme.

I can cheerfully report that this prediction was wrong. Clifford J did feel able to use s.6 (allied with other interpretative techniques) to find that the Broadcasting Act's prohibition on broadcasting paid electoral programmes didn't apply to the song and video. Which is great for a couple of reasons.

First, it brings about the right outcome. A world in which satirical songs poking the borax at the Prime Minister are banned from our TV or radio is a bad one in which to live. Second, it represents a somewhat energetic deployment of the NZBORA s.6 to ensure that a twenty-five year old piece of legislation (the Broadcasting Act is now that old) is fit for contemporary purposes. I hope that is a judicial attitude that carries through into other upcoming cases.

One final word about the Electoral Commission's role in all this. I suspect it'll get a bit of grief for having issued its warnings to Messers Watson and Jones. That action needs to be put in some context.

The Commission's job isn't to issue binding legal rulings on how the Electoral Act or Broadcasting Act applies. So, contrary to what you may read in the NZ Herald, it didn't "ban" the song and video. Instead, the Commission gives advice (if asked) or issues warnings (if it thinks it needs to) based on what it thinks the electoral laws say about what you want to do/are doing. That advice/warning simply reflects its understanding of the law - it's not something you then have to follow (like you do with a court).

Of course, the Commission's advice/warning does have potential consequences. The Commission can refer people it thinks are breaking the Electoral or Broadcasting Act to the Police. And while the Police most probably will then ignore the referral and allow the matter to go dead, you're still running a little bit of a risk if you do something that the Commission tells you will breach the law. Which is why, for instance, all broadcasters stopped playing Mr Watson's song once the Commission said that it thought it was an "election programme".

So has the Commission been too conservative and overly draconian in how it interprets the law when giving its advice/warnings? Well, as we now know, yes it has. But that's not to say that the Commission has acted in the wrong way. As I said previously:

I don't think the Electoral Commission is to be criticised for telling people that they should comply with what, on the face of it, the law says (as opposed to, say, what they might think the law ought to say).

That's because the Commission really has to take a quite conservative view of the law due to the reliance that is then placed on its advice. Imagine this situation - a candidate comes to the Commission and asks "If I run these messages as part of my campaign, will they be election advertisements?". The Commission then takes a liberal, generous interpretation of the law that it thinks properly respects free speech values and says "no - they won't be - they fall outside the Electoral Act." So the candidate heads off and spends a lot of money on publishing the messages.

Then, after the election (at which the candidate is successful) there is an election petition challenging the result on the basis that the candidate overspent the maximum allowed to her or him. In the course of this, the Court looks at the spending on the message and says "that message actually was an election advertisement under the Electoral Act, and so all the spending on it counts towards the candidate's campaign expenses". That then puts the candidate (now MP)'s campaign over the maximum spending cap, which makes the candidate guilty of a "corrupt practice" ... which gets the candidate (now MP) kicked out of Parliament altogether.

So you can see why the Electoral Commission takes something of a risk-averse, conservative approach to its interpretation of the law. If it gets it wrong in telling people what they are doing is OK, then that can have very big consequences down the line. So it errs on the side of caution - which then leads to warnings like telling Messers Watson and Jones that their song and video fall under electoral law's regulatory reach.

Fortunately, we now have a couple of cases - this one, plus Greenpeace v Electoral Commission - that can now serve to counterbalance that innate conservative tendency in the future. Because Clifford J's judgment reminds us of what we can lose if the screws of electoral regulation are tightened too far. In the words of a wise man, quoted at paragraph 61:

Before an election can be considered legitimate, all those seeking to influence the electorate must be entitled to express their views publicly. Not only does a failure to recognise and respect this right to freedom of expression prevent those seeking election from making their pitch to the electorate, it also deprives the electors of the opportunity to consider and evaluate the soundness of those arguments for themselves.

Or, to put it another way, if the law really hadn't let Planet Key be played as it was written, then that law would have had to be changed.