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.