Questions and Answers on the Electoral Finance Act
As a guide to readers, I have put together a Q&A on how the Electoral Finance Act works, so people can try and avoid breaking the law. Four points:
- I am not a lawyer.
- Read what the Electoral Commission has published and read the Act.
- Feedback, additions and corrections are welcome on the Q&A, which I will make a permanent link on the sidebar.
- It is designed to cover advocacy by members of the public only, it doesn’t try to cover everything about the Act.
What now qualifies as an election advertisement?
An election advertisement is “any form of words or graphics” which can reasonably be regarded as encouraging or persuading voters to vote for or not vote for a party or a candidate or a type of party or candidate [S5(1)]
So give me some examples?
Anything along the lines of “Do not vote for Party X” or “Do not support Candidate Y” is captured by S5(1)(a).
Stating “Vote for parties which support Kyoto” would be captured by S5(1)(b) as this refers to a type of party. It is highly likely “Vote for tax cuts” would also be captured.
Less clear, would be statements like “Party X is anti-worker” as it does not mention voting but could be reasonably regarded as encouraging people away from that party.
Statements for and against the Government, without mentioning parties, are also captured, as the Government represents a type of parties. So “throw out the Government” is definitely captured, and even “time for a change” could be captured if seen to relate to the election.
If one harshly condemns a Government policy, there is some risk depending on how you do it. Saying “We do not think the Government’s education policy is fair” should be okay. But if your rhetoric was “The Government’s education policy is unfair, unjust, and a disaster for provincial New Zealand and we want people to do everything they can to stop it” then a reasonable person could arguably regard that as encouraging people to vote against the Government.
One is best to get legal advice on the borderline cases.
What if we wish to publish in support of a party or candidate?
You can not do this at any stage (not just in election year) unless you gain written permission from the party’s financial agent [S65(1)] or the candidate’s financial agent [S65(2)].
What sorts of “words and graphics” are captured?
In essence everything except oral speech. The Electoral Act 1993 narrowly defined an advertisement as only something published in a newspaper, a periodical, a poster, a handbill, or broadcast on radio or TV [S221A(1)].
The Electoral Finance Act expands this definition to include anything at all issued, handed out or displayed to the public, anything sent to any member of the public, anything delivered to any member of the public, anything in a film or video, anything distributed over the Internet or stored electronically in any way which is accessible to the public. [S4(1)]. Basically every form of written communication there is.
So oral speech is okay?
Yes. The Select Committee did include a clause to capture oral speech, but after protests the Government removed that clause.
What is exempted?
The main exemption which could apply to members of the public are material on news media Internet sites and personal political views on blogs. [S5(2)]. Leaving comments on such sites or setting up your own (non-commercial) blog means posting your views on parties will not be an election advertisement.
How about other websites?
They are not exempted. A post on a Trade Me Forum or in an Internet newsgroup which advocates for or against a party or candidate is now a regulated election advertisement.
The same goes for You Tube. If you upload a video to You Tube which is seen to encourage or persuade people to vote for or against a party or candidate, then you need to comply with the identification requirements of the Act.
What do I have to do to not break the law if I wish to publish my view in such a way it will be deemed an election advertisement?
Under S63(2) you need to include your name and address with what you publish.
Even if it is a placard in a protest march?
Yes. If you make the placard itself (and it advocates against a party) you need to put your name and address on it. If a march organizer produced the placard for you, then it is their name and address that needs to be on it.
And even if I just make a post to an Internet newsgroup or upload a video to You Tube?
Yes. For example the anti John Key video done by The Standard would break the law if done in 2008, as it does not include a name and address of its promoter/producer.
And does this apply even if what I do costs very little, if any, money?
Yes. The regulation applies to any form of words or graphics. It is of course highly unlikely the electoral authorities and the Police are going to investigate or prosecute minor cases, but nevertheless you will be at some risk if you do not comply, and someone lodges a complaint against you.
Now what is the case if I do want to spend money advocating for or against a party or candidate?
Under S63(3) you can spend up to $12,000 advocating for or against a party before having to register as a third party. You should register once you even have the intention to spend more than that. If you are advocating for or against a candidate you can only spend $1,000 before registering. All amounts include GST.
And then if I register?
If you apply to register as a third party, and are successful with your application, you can spend up to $120,000 in total and if you are advocating for or against a candidate you can only spend $4,000 in relation to that candidate. These totals are for all of election year, until election day.
What are the penalties?
Not including your name and address is an illegal practice under S63(4).
If you spend more than $12,000 but less than $120,000 and do not register as a third party that is an illegal practice under S63(4).
If you do not register as a third party and spend more than $120,000 (or $4,000 in relation to a candidate) then that is a corrupt practice under S66(1).
If you do register as a third party and spend spend more than $120,000 (or $4,000 in relation to a candidate) then that is a corrupt practice if done knowingly [S122(1)(a)] and an illegal practice if not done knowingly [S122(1)(b)]
An illegal practice under S143 has a maximum fine of $40,000 for financial agents and $10,000 for others.
A corrupt practice under S142 has a maximum fine of $100,000 for financial agents and $40,000 for others plus up to two years imprisonment for either.
January 1st, 2008 at 11:58 am
Does a conviction for an illegal practice require that you declare this to travel to other countries (ie. If I were convicted for saying “vote labour” on usenet without putting my name & address on it, am I at risk of being denied entry to the US?)
January 1st, 2008 at 12:09 pm
I think it would but IANAL.
January 1st, 2008 at 12:16 pm
So could I set up a party called hmmmmmm
Labour Supporters Club, we set the Standard
And have an agenda of cleansing the real Labour party of it missdeads ie pointing out the Labour Party slips misstakes and ilegal f*****ps
All under the banner of bring it back to the real faith
And have my huge expenses sheeted home to the real Labour Party
January 1st, 2008 at 12:19 pm
Thanks, DPF. In my defence, I won’t use the “DPF said” defence. Instead, I’ll use the “Annette King said… common-sense” defence.
January 1st, 2008 at 12:25 pm
Ray – you can only have expenses recorded to a party if the party’s financial agent agrees you publishing material in support.
If you set up a Labour Supporter’s Party, it would be the LSP banner you would declare expenses. Any advertisements positively portraying a party that were not in fact authorised or produced by the party, but were simply an attempt by opponents to claim it had overspent – then those who produced the publications would be subject to a corrupt practice, dishonest and/or unfaithful representation, perhaps fraud as well.
January 1st, 2008 at 12:30 pm
So, does throwing a brick through an electorate office window count as a “political advertisement”?
January 1st, 2008 at 12:33 pm
How very clever of you to get your “news” exemption statement in early on the first day of the year.
I would say you would definitely qualify as advocating for the election of the national party and as for the “non commercial” claim . Please !!
The EC says ….The news media, including individuals’ own participation in political discussion through the news media and non-commercial blogs, are not covered by these requirements.
You run ads continually, just because its non profit does not mean its non commercial. If you have a few principlas left you could drop the ads to back up your non commercial claim. But then that wouldnt be DPF and his farrar social club which opened its campaign with billboards with lies
[DPF: Well Ghost you are welcome to lodge a complaint against what I write on this blog as breaking the law.]
January 1st, 2008 at 12:34 pm
No, The brick doesn’t, but the message with it arguably does.
At least it is no longer sedition!
January 1st, 2008 at 12:34 pm
http://www.nzherald.co.nz/section/1/story.cfm?c_id=1&objectid=10484925
Can’t say I haven’t considered similar actions. I wonder how many more we willl be seing?
Chickens. home. roost.
January 1st, 2008 at 12:35 pm
Sooo GWW should kiwiblog be restricted. Is your own contribution against the law?
January 1st, 2008 at 12:38 pm
Hi all
I think we should vote National in the coming general election, (assuming Labour do not ban the election beforehand). Labour are are corrupt bunch and they are sending us to a Chavez type dictatorship in NZ. Also, we will soon be out of the OECD at the rate we are going.
Regards
Peter Bickle
January 1st, 2008 at 12:41 pm
What a legal quagmire for a court system already struggling with 18,000 back log cases . Even a bush lawyer would argue that this insanity from liarbour is beyond normal comprehension and a slap in face for every moralistic and principled New Zealander. When will the last nail be driven into the Klark regime coffin ? Is she, as thick as a brick ?
January 1st, 2008 at 12:42 pm
A potential nuclear option.
National, together with other EFA opponents, should think about declaring that they will pass retrospective legislation, should they be in power following the election, declaring the EFA void ab initio (from the time of its enactment) and further vacating any convictions under the EFA for acts that would not also have been illegal under the old Electoral Act.
January 1st, 2008 at 12:48 pm
DPF: At least it is no longer sedition!
Yes. The crime is, and always should have been regarded as criminal damage.
January 1st, 2008 at 12:50 pm
Vote Green
January 1st, 2008 at 12:51 pm
I hear that the extremist group al Farrar is claiming responsibility under the code name ‘People Power’. The clue is in the use of a ‘motor scooter’ which has recently been seen at, in, near or somehow connected with the al Farrar blog (according to a powerful rumour created by the newly launched Google-rumour-engine).
http://www.nzherald.co.nz/section/1/story.cfm?c_id=1&objectid=10484925
It is important to note that the brick neither carried the name nor address of the assailant, which could be found to be in breach of the EFA. Officials from the Oxford dictionary are also in pursuit of the person because he/she also appears to have redefined the term “civil disobedience”.
Happy New Year to you all. New Year’s resolution: protest against the EFA? Tick the box next to the word National? Emigrate to Australia? Form a political party?
January 1st, 2008 at 12:53 pm
And, bemoan any judge who convicts a person for speaking out against this blatant political corruption . Look idiotavant, liarbour with incredible skill, have perfected this form of human manipulation, as any consummate artist perfects his or her craft !! They share one common denominator:injustice !!
January 1st, 2008 at 12:54 pm
“Vote Green”
Pass the bong to pete -phil – cough, cough !!
January 1st, 2008 at 12:59 pm
D4J we have a Legalise marijuana party allready, anyway hows your holiday at the gestapo pussy ranch
January 1st, 2008 at 1:02 pm
GWW – the nice thing about telling the truth is that it’s the only story you ever have to remember . Get a life creep .
January 1st, 2008 at 1:05 pm
The law of common sense would clearly designate this blog as “non-commercial”.
January 1st, 2008 at 1:07 pm
“The law of common sense ” ; As applicable to Labour as honesty is to Satan.
January 1st, 2008 at 1:07 pm
From the Elections NZ webiste DPF linked to above under”Non-candidates or non-political parties (“third parties”) wanting to influence voters”:
Shame on Labour, Shame on Winston’s Poodles First, Shame on The Greens.
Don’t vote for Labour, Winston’s Poodles First or The Green’s
These parties are a disgrace to democracy.
January 1st, 2008 at 1:10 pm
Labour, greens and NZ First are history .
January 1st, 2008 at 1:15 pm
“A potential nuclear option.
National, together with other EFA opponents, should think about declaring that they will pass retrospective legislation, should they be in power following the election, declaring the EFA void ab initio (from the time of its enactment) and further vacating any convictions under the EFA for acts that would not also have been illegal under the old Electoral Act.”
Yes! This would make it very difficult for the regulatory authorities.
I would like to see a promise to retospectively invalidate the rorting validation legislation too. That would be a constitutional nicety.
January 1st, 2008 at 1:16 pm
You know, I’m just about EFB’d and EFA’d out.
January 1st, 2008 at 1:28 pm
The complaint to the Advertising Standards “police” is in the mail for you and your friends in the FSC but thanks for the suggestion but ts a better idea to get them to rule you count as part of nationals advertising!!
January 1st, 2008 at 1:32 pm
Clearly something spooked the ghost last night . Wonder how the teddy bears are this year ?
January 1st, 2008 at 1:34 pm
<i><b>What if we wish to publish in support of a party or candidate?</b>
You can not do this at any stage in election year unless you gain written permission from the party’s financial agent [S65(1)] or the candidate’s financial agent [S65(2)].</i>
You need to delete the “election year” bit. You can’t do this in non-election years either.
[DPF: Thanks Graeme.]
January 1st, 2008 at 1:34 pm
The name and address requirements..
While these can be avoided their affect can be nullified. For placards, print media, web sites and anything graphical it can be made very difficult to read. Light grey or pale cream text in very tiny print on white could be very hard to discern. We are not required to obey the spirit of this law only its letter. Other examples are food labels where the contents and the numbers are frequently impossible to read. They are worth studying for obscurity; they use colour, size and background.
It would be possible with audio to speed up a voice to the point where many may have difficult hearing; the announcement could be heard as a squeaky blip. Alternatively slow it down to a low rumble. Simpler still, whsiper it or turn down the volume to barely audible where background noise of a crowd would drown it out.
The formal requirements only seem for the information to be given. As with food labels we are not obliged to help them understand it.
January 1st, 2008 at 1:35 pm
Straight out of a communist manifesto Mr Edgeler !
January 1st, 2008 at 1:37 pm
The name and address requirements..
While these can be avoided their affect can be nullified.
Sorry, this should have said NOT AVOIDED.
January 1st, 2008 at 4:08 pm
pete Says:
January 1st, 2008 at 12:50 pm
“Vote Green”
Is a vote for Labour.
January 1st, 2008 at 5:30 pm
Which is kinda the point.
January 1st, 2008 at 5:58 pm
OK. You’re all so savvy and David has told us which way is up. But I’m still confused.
Do me a favour and check out my site for me. Am I going to jail for speaking up for Pit Bulls or for criticising politicians? Or maybe the SPCA will get me. I’m sure there’s some means by which I can be punished for my political incorrectitude (not a word according to the dictionary but should be!).
Maybe you can spell it out for me so I know whether or not to pack my bags, shave my head before ‘they’ do, and find a surrogate mother for my dog for whatever might be the duration.
http://www.purebrednz.com
January 1st, 2008 at 10:15 pm
I’m an ex-pat living overseas. What if I register a non-NZ domain name like http://www.liarbores-r-us.com host it overseas and do everything from overseas? Am I still restricted, technically, but in reality, I have carte blanche? How would Labour prosecute someone living in Perth or London or somewhere?
[DPF: If you are overseas, your domain name is not .nz and your webhost is overseas, yes you are basicallu out of reach]
January 1st, 2008 at 10:47 pm
And even if I just make a post to an Internet newsgroup or upload a video to You Tube?
Yes. For example the anti John Key video done by The Standard would break the law if done in 2008, as it does not include a name and address of its promoter/producer.
I was looking back for further errors – there really weren’t any – and this is about as close as I got. Most of the definitions of publish occur at the time of the action – the delivering of the pamphlet etc. Not all do. Storing electronically in a way accessible to the public is ongoing – as is displaying to the public. Arguably, the publication is ongoing and an offence could be being committed.
The billboard is an interesting argument to consider this against – someone could put up “Don’t vote National” billboards in late December. It’s not election year so they don’t have to put their name on it. We’d never find out who’s behind it, even if it was up for all of election year. Put simply, if the billboard’s still up in the weeks before the election, we should be able to know who is behind it. The law certainly intends that we know who is behind it.
Displays to the public is ongoing, stores electronically and available to the public is ongoing, given that the law doesn’t distinguish between a YouTube video and a billboard, have we any reason to conclude that they’d be treated differently if they were each made public first, before a regulated period has begun?
January 1st, 2008 at 11:15 pm
ISeeRed – there is a strong presumption against extra-territoriality in law – especially criminal law. The EFA does not contain an express provision that it applies to behaviour wholly outside New Zealand – so it doesn’t.
January 1st, 2008 at 11:51 pm
DPF and Graeme Edgeler – excellent. I’m sure there are plenty of ex-pats who would like to do something like this. Ex-pats earn higher incomes and have more spare change than those who stay behind.
Now, if someone in NZ registers http://www.lowertaxesarechoice.org.nz for example, and only offers analysis, commentary etc. promoting tax cuts, not political parties, is that covered by the EFA?
January 2nd, 2008 at 12:25 am
ISeeRed – pushing for legislative or policy change – without also pushing electoral change – is not regulated by the EFA.
January 2nd, 2008 at 1:23 am
Great, Graeme! In a way, the EFA might be instrumental in helping redirect discussion and electioneering to debating the issues (not controlled or censored in any way by the EFA), rather than expressing blind partisan support for whatever party.
So, what’s the next step?
January 2nd, 2008 at 2:15 pm
Kev OB
Interesting so many comments on retrospective legislation – just wonder Labour et al supporters reaction to a retrospective offence of voting for or supporting at committee stages anti democratic legislation like the EFB without the need for trial, minimum non appealable sentence of 2 years – home detention only and the removal of all pension rights, Unions and their members included as accessories to the crime if financially supported the voting parties within the laast 7 years.
January 3rd, 2008 at 10:09 am
Got another one!
Something missing, and kinda off-topic, rather than wrong.
The publication of advertisements (permanently, not just in a regulated period) that “relate to an election” – but that do not fall within the definition of election advertisement in the EFA – are regulated by the Electoral Act, not the EFA, and require a name and residential or business address.
This applies to advertisements as they were defined in the Electoral Act – so doesn’t include things like press releases or YouTube videos.
January 3rd, 2008 at 10:29 am
While the EFA is not good legislation I believe it will have the unintended effect of invigorating electoral debate, stimulating political speech and actually making the 2008 election more ‘democratic’ in that more people will feel inclined to speak out.