Coalition For Open Government, New Zealand

After the last post, explaining how political parties are banned from publishing issue advertisements in election year (it surprised me when I saw it too), I thought I’d draw a few things together, to show you how poorly drafted this bill seems to be. A concrete example of how the bill, if followed, would work in practice.

It’s not July 2007, but January 2008.

Election year.

You’re a National Party press secretary, and the David Benson-Pope/Madeline Setchell issue has just broken. You’ve been asked to send out a National Party press release calling for the Prime Minister to sack her Environment Minister.

The press release doesn’t ask for votes, and it doesn’t tell people not to vote for Labour. Nothing fancy like that. It just asks the PM to remove her minister from cabinet – you’re keeping it short and sweet.

You look up the Electoral Finance Act, section 5 – the definition of election advertisement.

It’s just a press release – being emailed to journalists and anyone who’s signed up to your email list; you’ll upload it to the National Party website.

Sub-section (1)(a) draws your eye. Press release – that fits within the phrase “any form of words or graphics” doesn’t it? Better read on.

Paragraph (i)? Asks for a party or candidate vote? Nope. Safe so far.

Paragraph (ii)? Encourage to vote for a party or candidate based on a policy position? No. Still safe.

Paragraph (iii)? Takes a position on a proposition associated with a political party? Damn. It does. The position is that the Minister should be sacked. The proposition is that the Minister should be sacked. That proposition is associated with the National – your MP just said as much in the House, and then asked you to send out the press release. Looks like your press release is an election advertisement.

Check the exceptions to the definition, just to make sure.

Ad from an Election agency? Or about a Citizens Initiated Referendum? Is it a newspaper? Or TV broadcast? A book for sale at commercial value? A document published by an organisation to its members? A ‘blog?

No luck. It’s an election advertisement.

So what’s that mean for your humble press release? You flick through to section 53.

Regulated period? Yep – there has to be an election this year.

You’re emailing your press release out, and posting it on a website. Does that count as publishing it? You turn to the definition. Paragraph (c) – send to any member of the public by any means. Well that looks like email is covered. And the fax. And you’re putting it on the website anyway – that’s paragraph (k) – store electronically in a way that is accessible to the public. Getting that press release out there is definitely publication.

Reading further – as a political party you’re only entitled to put your election advertisement – your press release – out there with the approval of National’s financial agent. You’re about to ring him to confirm, when you notice he can only approve “party advertisements” – and this isn’t one (it’s not asking for party votes).

Your MP’s also running in an electorate as a candidate, maybe instead of sending out the press release from the National Party, you’ll make it from your MP as a candidate. The candidate financial agent can approve election advertisements too. Wait, that’s only “candidate advertisements” – and this isn’t one of those either (it’s not about the electorate vote).

You’re MP isn’t registered as a third party (can’t – candidate’s are forbidden), and National isn’t registered as a third party either (it can’t), so you can’t put out the press release that way. And National will be spending more than $5000 in the election, and your MP more than $500 as a candidate, so you can’t get permission by filing a statutory declaration.

You’re stuck. It’s illegal for you, your party, or your MP to put out that press release. So you don’t.

You figure it wasn’t deliberate, but that’s undoubtedly what the law says.

You silently curse not making a submission pointing out how sloppily drafted the Electoral Finance Bill was. Your MP isn’t so silent. But nobody notices – Scoop.co.nz has already shut down. Labour can’t put out press releases either.

The bill is bad.
Election finance law needs to change.
Not like this.
Make your voice heard to the select committee.

Graeme Edgeler
Coalition for Open Government