Coalition For Open Government, New Zealand

Much of the Parliamentary opposition (mostly from National) to the Electoral Finance Bill has focussed on the prospect that it will gag them (and others) from opposing the Government in election year. The posturing has at times, seemed a little over-the-top. Yes, I thought, the extended election period does mean money you spend opposing the Government at the start of the year will count toward your cap (or third parties’ caps), but that same applies to unions supporting the Government and to Labour themselves.

And I’ve already explained how I think the concern that National (or any other political party) has that the Government may be able to spend millions promoting, for example, budget initiatives without that counting towards Labour’s spending cap, but that every dollar spent to oppose those initiatives means a dollar less that can be spent – Government advertising may come within third-party spending caps.

The law doesn’t mean that money spent by the Green Party in February of an election year opposing that Trans-Tasman Therapeutics Agency counts towards its cap. Or that a campaign next year against council rates increases by National is covered in their election year spend. That’s what National is fear-mongering about.

They’re wrong.

But I was more wrong.

It is painfully, laughably so much worse than that.

The Electoral Finance Bill forbids political parties from publishing issue ads in election year.

Every election advertisement (and you’ll remember how widely that’s defined) published by a political party (or a candidate) that doesn’t either seek votes, or oppose the giving of votes to someone else, is unlawful.

Green Party advertisements opposing something like the Trans-Tasman Therapeutics Agency? Illegal.

National Party advertisement alerting people that the Copyright Amendment Bill bans people from recording tv shows. Illegal.

How does the law achieve this ludicrous outcome? Well, just to prove I’m not making this up, I’ll run you through it. It’s surprisingly simple.

Clause 53 of the bill sets out the requirements for publishing an election advertisement in election year:

(1) No person may, during a regulated period, publish or cause or permit to be published any election advertisement unless–

(a) the advertisement contains a statement that sets out the name and address of the promoter of the advertisement; and
(b) that person is entitled to promote the advertisement.
(2) For the purposes of subsection 1(b), a promoter in entitled to promote an election advertisement if the promoter is–
(a) the financial agent of a party, but only if the advertisement is a party advertisement promoted by, or on behalf of, that party; or
(b) the financial agent of a candidate, but only if the advertisement is a candidate advertisement promoted by, or on behalf of, 1 or more candidates; or
(c) a third party; or
(d) a promoter to whom subsection (3) applies.
(3) This subsection applies to a promoter if, before the publication of the election advertisement, the promoter gives the publisher a declaration completed by the promoter, in the manner provided by section 9 of the Oaths and Declarations Act 1957, to the effect that the expenses incurred in respect of all election advertisements promoted by the promoter that have been and are to be published during the election period–
(a) do not exceed $500, in the case of election advertisements that relate to a candidate in the candidate’s capacity as a candidate for an electoral district (whether or not the name of the candidate is stated); and
(b) do not in any case exceed $5000.

All election advertisements are illegal unless they follow clause 53(1).

Parties can only fulfil the requirements of clause 53(1) if, under clause 53(2) the election advertisement they want to promote (i.e. cause to be published) is a “party advertisement” (they can’t qualify under clause 53(2)(c) because they’re forbidden from becoming third parties, and they can’t qualify under clause 53(2)(d) because they’ll be spending more than $5000 in election year. Clause 4 of the Bill tells us what a party advertisement states:

Party advertisement means any form of words or graphic that can reasonably be regarded as encouraging or persuading voters to do either or both of the following:
(a) to vote for the party (whether or not the name of the party is stated);
(b) not to vote for another party (whether or not the name of the party is stated)

If the election advertisement the party wants to release doesn’t either seek votes for them, or seek that votes not be given to someone else it then the party is not “entitled to promote it” under clause 53(1) and if they do promote it, they commit an illegal practice.

Political party issue advertisements will be against the law.

Graeme Edgeler
Coalition for Open Government