In Peters v Electoral Commission Mallon J heard an application for judicial review brought by Winston Peters in relation to a refusal by the Electoral Commission to refer an internet video statement to the Police.

The claim concerned a video statement in which Kenneth Wang, deputy leader of the Act party, stated that Mr Peters was anti-Chinese. The video was posted on the internet 12 days before the 2014 general election and was available online until the day before the election.

Mr Peters claimed the statement was a breach of Section 199A of the Electoral Act 1993 (Act), which prohibits the publication of a statement which is made to influence voters and which the publisher knows to be false within two days of a polling day (Prohibited Period).  Mr Peters requested that the Electoral Commission refer the statement to Police.  The Electoral Commission declined this request, stating that it did not view the statement as in breach of the Act.

Mallon J firstly considered whether the Electoral Commission's response was a judicially reviewable decision, holding that it was reviewable on the basis that the response centred on an investigation into the rights or liabilities of a person and was of potentially important public consequence.

In reviewing section 199A of the Act, Her Honour then considered whether a publication which was first published outside the Prohibited Period is nonetheless published within the Prohibited Period if the publication was still available within that period.

Her Honour held that a statement which is published before the Prohibited Period but which continues during the Prohibited Period is nonetheless classified as having been published during the Prohibited Period.  The harm to a fair election that a continuing publication has justified classifying the statement as having been published within the Prohibited Period.

See Court decision here.