KEY POINTS:
The National Party has failed in its High Court bid to have a Labour Party leaflet considered by the Electoral Commission to breach the law referred to the police.
A decision of Justice Alan Mackenzie released yesterday said the commission was well within its rights not to refer the pamphlet to the police even though it found it to breach the Electoral Finance Act.
In any event, the only remedy he could have offered would have been to direct the commission to reconsider its decision, not to refer the matter to the police.
It emerged last week during the court hearing that the police have actually been investigating the leaflet anyway, after a complaint from a member of the public.
But yesterday's decision still gives important guidance to the commission as to how it might handle future case.
National argued that under the act the commission did not have discretion to exercise and that any material it found to be in breach of the act had to be referred to the police, who could exercise discretion as to whether to prosecute or not.
The leaflet "We're making a difference for everyone" produced by Labour last year was the first breach identified by the commission under the new law because it was an advertisement not properly authorised.
The act requires the commission to refer breaches to the police unless it considers the matter "so inconsequential that there is no public interest in reporting those facts to the police."
National said failure to include proper authorisation could not be inconsequential because that would undermine the objective of transparency - which was fundamental to the purpose of the act.
Crown Law advice to the commission was to err on the side of reporting. Notes of the commission's discussions indicate the decision was close, but the commission decided it would rather use the pamphlet decisions for the purposes of education about the new act.
Justice MacKenzie said the value judgment was needed in determining the concept of "inconsequential".
"That value judgment is one for the commission, not the court. The court cannot, on judicial review, substitute its own value judgment."
