News release 18 April 2008 - Coalition for Open Government

The Coalition for Open Government is delighted that the Press Council has upheld its complaint against the NZ Herald’s Electoral Finance Bill campaign.

The Press Council found that the Herald’s front-page editorial last year contained a “mis-statement of fact”, which the paper should have promptly corrected.

Coalition spokesperson Steven Price said the Press Council’s ruling showed once again that the public were not well-served by the reporting on the Electoral Finance legislation. “We strongly support the Herald’s right to comment on this important law,” he said. “But it’s vital that the media doesn’t mislead the public about the basic facts. We think the Herald was exaggerating the problems with the bill in order to bolster the paper’s campaign against it.”

This is the first time the Press Council has ruled that such a prominent, vigorous and sustained campaign by a newspaper contained a significant inaccuracy.

The editorial was published under the banner headline: “DEMOCRACY UNDER ATTACK Speak now, or next year hold your peace”.

The paper asserted that anyone spending any money on electioneering would need to register as a third party to do so. The Press Council said this was wrong. The law only requires those who want to spend more than $12,000 electioneering who need to register - a much smaller group. The law is designed to allow normal debate about issues to go on as usual in election years, with no controls or limits of any kind, and the restrictions on electioneering are geared to telling voters who is behind the ads and ensuring that the ability to participate in political debate doesn’t turn on the size of your bank account.

This is not the first example of misleading reporting on the bill. COG’s complaints against early coverage of the Electoral Finance Bill on TVNZ and TV3 were upheld by the Broadcasting Standards Authority in February.

The Press Council’s decision is set out below.

The BSA’s decisions are available at: http://www.bsa.govt.nz/decisions/2007/2007-093.htm and http://www.bsa.govt.nz/decisions/2007/2007-094.htm

The Coalition for Open Government was reformed for 2007 to lobby for fairer and more transparent electoral finance laws. It supported the thrust of the Electoral Finance Act, though it was critical of some aspects of the law and the way it was passed.

~~~

CASE NO: 1024

ADJUDICATION BY THE NEW ZEALAND PRESS COUNCIL ON THE COMPLAINT OF THE COALITION FOR OPEN GOVERNMENT AGAINST THE NEW ZEALAND HERALD

NOT TO BE PUBLISHED BEFORE 18 APRIL 2008

The Coalition for Open Government complained that two editorials in The New Zealand Herald concerning the Electoral Finance Bill contained inaccurate statements. The complaint is upheld.

Background

The New Zealand Herald ran a vigorous campaign against the passing of the Electoral Finance Bill. Two of its editorials which were part of this campaign are the subject of the complaint by the Coalition.

The Coalition complained to the editor of the Herald about the contents of the editorial on 4 December 2007. In its reply the Herald referred to its considerable news reporting and other editorials during the previous three weeks. This reply caused the Coalition to complain about a previous editorial published in the 20 November 2007 edition.

The December editorial appeared on the front page under the heading:

“democracy under attack

Speak now, or next year

hold your peace”

The words in the December editorial to which the Coalition objects were:

“From next month until a probable November election, any person or group wanting to promote an issue of concern would face a legal and bureaucratic minefield. For the right to spend their money they would need to register as a “third party”, file declarations about donors and expenses and keep within a spending limit of $120,000, just 5 per cent of the amount MPs’ parties may spend.”

The editorial contained quotes from other newspapers which supported the editor’s view.

The second editorial complained about had appeared previously on 20 November 2007 in its normal position on the perspectives page. It was headed:

“Electoral bill still an outrage”

The editorial appeared after the Select Committee had proposed amendments to the Bill which alleviated some of the public concern about the proposed legislation.

The part of the November editorial which is subject to the complaint read:

“The bill still seeks to control not just donations to parties and their spending but also the campaigns that any other group in the community might mount for the purpose of speaking to voters. To spend their own money at any time in election year they will have to register themselves as “third parties”, make financial declarations about their donors and expenses, and keep within a statutory spending limit. The committee has doubled their spending cap to $120,000 but that is only 5 per cent of the amount permitted to parties.”

The Complaint

The Coalition accepts the Herald’s right to run a campaign and to express its views. However, it complains that the editorials mis-state a key fact which “serves the paper’s purpose in highlighting the ill effects of what it regards as an odious bill. But because its error greatly exaggerates those ill effects, the editorials mislead readers.”

The Coalition is concerned about the following words in the December editorial:

any person or group wanting to promote an issue of concern would face a legal and bureaucratic minefield. For the right to spend their money they would need to register as a “third party”.

The point at issue is that under the revised bill, no person or group will have to register as a third party unless they want to spend more than $12,000 on election advertisements. In the Coalition’s view most groups looking to take part in an election debate do not spend more than $12,000 and use relatively inexpensive means of participating, namely press releases, websites, letters to the editor, comments in the media or organised marches. The editorial suggests that everyone will need to register and this is not correct.

In reply, after the Herald had made the concessions referred to below, the Coalition made the following submissions:

(a) The error was a significant one because it appeared on a rare front page editorial; had an alarming banner headline emphasising the gagging effect of the bill on everyone; it repeated an error in an earlier editorial; the error formed part of the foundation of a prominent, protracted and critical campaign by the Herald; it related to a significant piece of legislation affecting the workings of the national democracy; and the error was published at a crucial time while the bill was going through Parliament.

(b) In the Coalition’s view the three previous articles were insufficient to alleviate the Herald from responsibility for its errors. They were not in the same papers as the editorials, one of which was a front page editorial, and they did not draw attention to the errors in the editorials. In response to the Herald’s submission that the error “does not undermine our general view of the shortcomings of the bill”, the Coalition believed that was a matter of opinion and the Herald should have properly provided the correct information to its readers to let them make up their own mind, particularly as the Herald was taking an openly partisan stance itself.

The Herald’s Response

The Herald in its response conceded that the Coalition has a point but, although it is not trivial, it is by no means as serious as the Coalition makes it out to be. The Herald believes that the mitigating factors are overwhelming. It does however concede that the November editorial was misleading as it mentioned the doubling of the spending cap from $60,000 to $120,000, but did not mention the $12,000 threshold for registration, leaving it open for readers to assume that anyone spending any money, would have to register.

The Herald states that when it received the complaint relating to the December editorial, it was not inclined to oblige the Coalition because the key phrase in the passage referred to was “to promote an issue of concern”. Its view was that no third party would be able to promote a cause effectively for less than $12,000 and would therefore be required to register. The allowable amounts for third parties were, in the Herald’s opinion, so small by comparison that no third party would be able to promote a cause effectively. It had made this point previously in an editorial on 13 August 2007 when the registration threshold was $5,000 and the maximum spending cap, $60,000. Having made the point that no third party would be able to promote a cause effectively, it saw no necessity to refer to the threshold as it did not regard the $7,000 increase as sufficient to change its opinion.

The Herald also notes that the $12,000 threshold figure had already appeared in its news columns three times before the Coalition made its first complaint.

The Herald submitted that its error was not serious or significant because:

(a) The increase of the threshold to $12,000 does not undermine its basic position. That sum falls well short of the amount required to promote a cause effectively. It refers to the Electoral Commission comment that $40,000 would be needed before a campaign would begin to register. It agreed with that assessment. If it overlooked the matter in its editorials it was rather because the matter was relatively unimportant to it and it had already made the point.

(b) A further complication is that it is not correct as the Coalition says that “no person or group will have to register unless they want to spend more than $12,000 on election advertisements”. There is a threshold of $1,000 for anyone who wishes to run an advertisement that refers to a candidate. This minimizes the consequences of the Herald’s error because the statement that “anyone will have to register” is much closer to the truth than no-one will have to register unless they spend more than $12,000. This more realistic assessment of the significance of the $12,000 threshold mitigates the effect as does its coverage as a whole.

Discussion

The Herald has acknowledged it erred, but says that the error was not significant and that factors mitigate the effect of its error. It accepts that it was not trivial.

The Herald was entitled to run the campaign which it did against the Electoral Finance Bill. This is accepted by the Coalition. However, comment or advocacy as this was must be based on fact. In this case, as the Herald has acknowledged, it mis-stated the fact. The need to register for third persons only applied to those who wished to spend more than $12,000 on advertising.

The Council accepts that it is probably correct that any person or group wanting to promote an issue of concern would be required to spend more than $12,000. However, this is not the point. The editorial suggested that anyone who wished to promote an issue of concern would need to register as a third party. The failure to note the $12,000 threshold was a mis-statement of fact, which in the Council’s view was not minimised by the words “to promote an issue of concern”.

Nor is it sufficient in the Council’s view to say that the correct amount had been mentioned on other occasions. The December editorial was given prominence on the front page, and although some of the readers would have been aware of the $12,000 threshold, many would have not. In the circumstances, the other articles and editorials cannot be relied upon in support of a submission that readers were not misled.

It is noted that the Herald now includes in its potted summaries the $120,000 spending cap, the $12,000 threshold and the $1,000 threshold which applies to naming candidates. The Herald has taken appropriate steps to subsequently mitigate its mis-statements.

Conclusion

For the reasons given, the Council finds that the omission of a significant detail led to inaccurate statements being published in two of The New Zealand Herald’s editorials and the Council upholds the complaint.

The Council is also of the view that in this particular case, a prompt correction given reasonable prominence, would have been an acceptable acknowledgement of its error.

Press Council members considering this complaint were Barry Paterson (Chairman), Aroha Beck, Ruth Buddicom, Kate Coughlan, Penny Harding, Keith Lees, Clive Lind, Denis McLean, Alan Samson and Lynn Scott.

Media Release: For Immediate Release
19 November 2007

Coalition for Open Government welcomes revised Electoral Finance Bill

The Coalition for Open Government welcomes the revised the Electoral Finance Bill, saying it is greatly improved by the changes announced today.

“We are particularly pleased to see that the bill now abolishes secret trusts and tackles anonymous donations,” said Steven Price, spokesperson for the Coalition.

The Coalition also welcomes the tightening of the definition of “election advertisement”, and believes the bill now strikes a much better balance between freedom of expression and the need to protect the democratic system from the corrupting influence of big money.

The Coalition notes few people will have to undergo the administrative burden of registering, because it will only apply to those who want to spend more than $12,000 on electioneering (though the threshold for electioneering about constituency candidates is $1000). What’s more, hardly anyone will want to spend so much money that they’ll be affected by the $120,000 cap.

“The bill is not about trammelling people’s right to free speech,” said Price. “The revised bill clearly supports democracy by requiring greater transparency of donors and levelling the playing field so that groups like the Exclusive Brethren can’t use their big chequebooks to swing elections.”

The Coalition is also glad that the bill now:

* restricts overseas donations;
* further increases the penalties for almost all the electoral offences;
* no longer requires people to sign statutory declaration before engaging in electioneering; and
* allows third parties like Forest and Bird to protect the identities of their donors who aren’t trying to influence the election.

However, the Coalition calls on parties to tighten the rules for anonymous donations even further.

“The bill makes real progress in dealing with the huge sums given to political parties in secret,” said Price. “Still, we think the restrictions on anonymous donations should be tighter.”

Under the bill, a political party would still not have to tell the public the name of someone who gave it $30,000 in an election cycle.

“A simple solution would be to get rid of the new process by which anonymous donations can be funnelled through the Electoral Commission,” said Price. That would effectively ban all anonymous donations over $1000.

The select committee report on the Electoral Finance Bill has just been released.  Click here to download a copy.

Submissions to the Electoral Finance Bill have now closed.  You can now read submissions on Parliament’s website - click here.

The Coalition for Open Government’s submission is available for download here (PDF file).

Please spend a few minutes to make a difference to a new law tackling the influence of big money and secret money in our elections. Just click the link below to have your say to the Parliamentary committee overseeing the law. Public pressure is vital to ensure we take secret money out of our elections.

The Electoral Finance Bill is the biggest rewrite of the election laws for years – with over 150 clauses – including good parts, technical parts and disappointing parts. Some sections matter most of all and we urge you to have a say about them.

1. MOST IMPORTANT: REINSTATING THE BAN ON ANONYMOUS DONATIONS AND SECRET TRUSTS

If you only ever say one thing about this legislation, please insist that it prohibits secret election contributions via anonymous donations and secret trusts. The Government promised this and until recently it was the centre piece of the new law. We suggest a law that requires all donations above $500 to be declared and that makes it illegal to siphon funds through a third party, such as a secret trust fund. These two measures, combined with stronger penalties for breaking the law, will remove the most corrupting influence from our election system. Essentially, the same strong rules being introduced in the bill for ‘third parties’ (such as lobby groups) doing election-time campaigning should be applied to political parties as well.

There are other important points worth making:

2. BAN OVERSEAS AND CORPORATE DONATIONS TO POLITICAL PARTIES

Until recently this bill included a ban on overseas donations. As the 1986 Royal Commission said, as a matter of principle it is not legitimate for wealthy and powerful interests outside New Zealand to intervene in our electoral system. The ban on overseas donations should be reinstated. Likewise, in a one-person, one-vote system, why should corporations and other organisations that are not entitled to vote be allowed to influence political parties and elections with money? The bill should follow the Canadian example and only permit political donations from people who are entitled to vote in the elections.

3. STRONGER PENALTIES FOR BREAKING ELECTION FINANCE LAWS

Unless there are strong penalties, parties and wealthy lobby groups will simply break the law when it suits them. One industry lobby group is already boasting that it intends to break the new law. We suggest there should up to seven years in prison and a $1 million fine for “corrupt practices”, where a person knowingly breaks the election finance law.

4. SUPPORT CONTROLS ON EXCLUSIVE BRETHREN-STYLE CAMPAIGNS

The bill contains rules for restricting big-spending third party campaigns of the sort we saw from the Exclusive Brethren in the 2005 election. The rules would make third parties disclose their big donors, who would not be allowed to hide behind secret trusts. Those clauses are good – and they should apply to political parties, too. It’s also sensible to regulate how much individuals and corporations can spend trying to influence the election debate. But the bill should strike a better balance between free speech and sensible controls.

5. SUPPORT OTHER GOOD PROVISIONS IN THE BILL.

Especially a) support spending limits for political parties during the full election year (from 1 January), not just for the last three months as at present. This is is avoid parties with wealthy backers outspending their opponents before the three-month official election campaign period begins. And b) support public disclosure of election donations throughout the election year, so the public can know who is funding parties’ election campaigns before casting our votes.

Please do it right now…. just click on this link to have your say, then click “SUBMIT” to send it to Parliament.

The final date for public comments is 7 September 2007.  There is more information in the August issue of our newsletter Open Government Report.  Download the newsletter here (PDF file, 145 kb).

PLEASE FORWARD THIS TO YOUR FRIENDS AND FAMILY.

Coalition for Open Government, August 2007. www.cog.org.nz

Among the many innovations in the Electoral Finance Bill is a move to update its reach to a more modern age. The current law was written in 1993, but much of it was ported from the 1956 Act that preceded that. Times and technology have changed, but our electoral laws haven’t – and the Government wants to use this opportunity to update. Advertising isn’t what it used to be – the methods are different, and more varied – and a lot of what a modern campaign involves just isn’t covered in the law.

So what’s the change? In short, whilst the Electoral Act regulates “advertising”, the Electoral Finance Bill would regulate “any form of words of graphics”.

I’ve already discussed some of the consequences of this change. But the intent behind it is clear. In a time of electronic media, of websites and YouTube and email, a narrow focus on advertising was felt inadequate. What use are spending caps if most expenditure on new media isn’t included? If parties can spend perhaps millions on getting their message out to voters without that spending qualifying as election expenditure then the aim of the rules – to give parties some sort of level playing field in communicating to voters – is rendered nugatory.

Imagine if at the last election, National hadn’t broadcast its clever taxathon advertisements, but instead put them anonymously on YouTube, sent around a few emails to have forwarded, and had David Farrar link to it; it might have gotten almost as many views as it did on television, it probably would have aired on television anyway (Campbell Live or Nightline, Breakfast or Close Up), and even though they’d spent thousands on the production of the animation, it wouldn’t have counted towards their limit.

Advertising bought on a website (like the Herald or TradeMe) is currently included, but highly professional, quite expensive websites themselves are not. This isn’t necessarily unfair – the same rules applied to all parties, and no-one had to include their non-advertising expenditure in the cap – but it certainly carries a risk of inflaming the arms race between political parties.

So we have a change. Non-traditional advertising – the clever YouTube-only video, the website and email campaigns – now comes within parties’ (and others’) spending caps. If it’s getting your message out to the public, the costs of doing that, and making it, have to be accounted for.

It makes a lot of sense. A taxathon video on the web is no less advertising than one on the television, and whether it’s the cost of broadcast time, or bandwidth, it’s sensibly included in any calculation of the cost of a campaign. But the extension of regulation from “advertising” to “any form of words or graphics” could have myriad other effects.

Under the current rules, it isn’t just the advertising itself that counts toward your limit, it’s also any expense incurred in respect of that advertising. Your ad agency, your graphic designers, your film crews and studio time, your copy writers, the cost of printing, delivery (if you don’t get volunteers to do it), and renting bill board space – these all currently come within the cap. Entirely reasonably.

But think through what this means now that YouTube videos and party websites – and all other forms of words or graphics – are regulated. The definition of what’s included in the cost has changed – it’s no longer expenses in respect of advertising, but “the cost of preparation, design, composition, printing, distribution, postage, and publication” (and you’ll remember from this post the rather broad meaning of publication). The law currently includes the cost of people/staff involved in advertising as an election expense – but in the future it’s intended that it will include the cost of preparing or composing the “any form of words or graphics” to be regulated.

It won’t be just the cost of people involved in advertising (your designers and copy writers) that’s an election expense, but the cost of people involved in writing the content on the website (an election advertisement under the proposed law), and perhaps the people who run the website. That’s your IT guy, and if most of the copy on your party website is MPs’ press releases (also election advertisements) then a substantial portion of all of a party’s press secretaries’ salaries too – and speech writers (if your speeches go on YouTube, are posted on-line, or emailed out), and perhaps others whom I’ve not considered.

So – not only would the Electoral Finance Bill extend the period in which the election cap ($2.4 million for Labour, $2.26 million for National etc.) applies from 3 months to perhaps 11, it effectively cuts it by perhaps half a million or more by including in the cost the time of numerous staff whose time was never spent in respect of advertising, but is related to “words or graphics”.

Don’t get me wrong – there are definitely reasons why one might want to include some staff time in the election spending cap – but it shouldn’t be done surreptitiously, or as an unintended consequence of changing definitions.

Graeme Edgeler
Coalition for Open Government

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

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

So you’re an ordinary New Zealander who feels strongly about a political issue. Maybe you think that New Zealand should remain GE-Free, or are opposed to the repeal of section 59 of the Crimes Act. The election hasn’t been called yet, but it’s election year. How would this Election Finance Bill affect you?

Well if you wanted to spend more than $5000, you’d have to register with the Chief Electoral Officer, appoint a financial agent, and perhaps an auditor and then file expense returns and donation returns after the election. But you’re not that fancy. Or that rich. You couldn’t afford to spend that much even if you wanted to; maybe you’re a stay-at-home parent who’s scared of being criminalised if section 59 is repealed; you’re a student worried about genetic engineering.

You want to go to a protest. Campaign by sticking up posters and raising awareness. Make some clever mash-up and post it on YouTube. Let’s see how the law treats you…

The GE-obsessed student. You don’t have a lot of money, so you want to buy a bucket of that big chalk and scrawl “Keep NZ GE Free” on the pavement near University and along Lambton Quay near the Beehive on the eve of a Government decision on whether to allow a particular GE field trial.

You can buy the chalk pretty easily, but before you use it you’ve got to make a statutory declaration under the Oaths and Declarations Act declaring that the expenses incurred in respect of all the electoral advertising you have done that year or intend to do that year, will not exceed $5000.

You’ve never heard of making a statutory declaration about future events, but you do it anyway. And because you’re not only the promoter of the election advertisement, but also the publisher, you give the statutory declaration to yourself.

Now you’re ready to chalk. So you scrawl “GE Free NZ” and “Keep NZ GE Free” all over the place. Of course, it’s election year, and taking a position on GE is election advertising, so at each and every place where you write this, you add a statement that sets out your name and your full residential address.

The section 59 opposing parent. You’re not inclined toward that sort of guerilla campaigning, so you’re helping to organise a protest march. You’ll hold up a sign declaring “don’t criminalise good parents” and will hand out small leaflets to interested people along the protest route. You’ve bought paint for the sign, and gotten an old sign from a real estate agent to put it on. You put your name and full residential address on it and you make a statutory declaration which you give to yourself. You’ve gotten some little leaflets printed, and given half-a-dozen other protesters these to hand out; these also have your name and address on them – you’re the promoter, but since they’re handing them out, not you, they’re the publisher, so you give each of them a statutory declaration promising that you’ll be spending less than $5000.

Someone videos you speaking at the protest, and you think you did pretty well, so you put it on YouTube with footage of the protest and other speakers. While the speech itself was an election advertisement, the actual speaking didn’t amount to a publication. Now that YouTube is storing it electronically in a way accessible to the public you know that counts as it being published so you send Google a statutory declaration too – and you make sure to include your full name and residential address with the video.

And you do it all again next time you campaign. Or Stick up posters. Or post footage of a protest on YouTube. Even if you’re 14, and had no idea what a statutory declaration was or have been told not to give out your address on-line. Even if all you spend over the whole of election year is $10.

Even if it doesn’t cost you any money at all.

There is no minimum amount of election advertising before your have to do all this. No matter how small your election-year political campaign, no matter how remote from the election itself, if you’re publishing just about any form of words or graphics that takes a position on a proposition associated with any party or any electorate candidate, then the Election Finance Bill would regulate your actions.

Remember that this criticism comes from a person who, and a group that, favours changes to the laws around third party advertising during the election.

It’s a little overboard, don’t you think?

Graeme Edgeler
Coalition for Open Government

The last post looked at the sort of campaigns that would be covered by $5000 or $60,000 spending limits in election years:

Keep Section 59, Repeal Section 59, Campaign for Civil Unions, GE Free NZ, US out of Iraq (and most groups campaigning on most of these issues would be limited to $5000).

But it’s also important to look at what would be covered in their campaigns. As I noted earlier election advertising can be in:

“any form of words or graphics, or both”.

Now that’s broad enough to cover just about anything – posters, flyers, TV, newspapers, press releases, e-mails, even speech (’though actual speech usually won’t cost money).

So to avoid absurdity, that breadth is narrowed by some exceptions. None of the following publications, even though they might be forms of words or graphics, counts as an election advertisement:

a) advertisements from the Chief Electoral Officer, Chief Registrar of Electors or the Electoral Commission (as discussed here)
b) advertisements about Citizens Initiated Referenda
c) content of a newspaper or periodical, selected by, or with the authority of, the editor solely for the purpose of informing or entertaining its readership
d) content on TV or radio solely for the purpose of informing or entertaining its audience
e) a book sold for no less than its commercial value, if the book was planned to be made available to the public regardless of any election
f) a document published directly by a body corporate or unincorporated to its members
g) the publication by an individual, on a non-commercial basis, on the Internet of his or her personal political views (being the kind of publication commonly known as a blog)

Now you may have noticed the use of the word “publications” – importantly, this word applies only to the exceptions to the definition of “election advertisement”, and not to the definition itself. Something can be an election advertisement, even if it not a publication, but something can only fall within the exceptions to that definition if it is a publication. This narrows the exceptions considerably.

However, whilst just about anything qualifies as an election advertisement, the advertising regime in the bill only applies if the advertisement is published, and it only counts toward any spending limits on publication. So what is publication? The bill includes the following definition:

publication, in relation to an advertisement, means to-

(a) insert in a newspaper or other periodical published or distributed in New Zealand; or
(b) issue, hand out, or display; or
(c) send to any member of the public by any means; or
(d) deliver to any member of the public, or leave at a place owned or occupied by a member of the public; or
(e) broadcast;
(f) include in a film or video; or
(g) disseminate by means of the Internet or any other electronic medium; or
(h) store electronically in a way that is accessible to the public

While (d) could arguably include the delivery of speeches of, it probably wouldn’t be read that widely (put video or text of a speech on-line however, and it’s covered).

So, whilst the definition of publication isn’t ludicrously broad, it’s still pretty expansive. For third parties, publication of election advertisements would almost certainly include:

• handing out leaflets along the course of a protest march
• sending out a press release
• operating a website
• displaying placards at a demonstration
• posting clips on YouTube
• Putting up posters
• Writing slogans in chalk on the pavement

And money incurred in doing these things – or preparing them – counts toward your limit.

Buying chalk/ painting banners for a protest march – all regulated. And you’re still yet to see how much.

That’s next.

Graeme Edgeler
Coalition for Open Government