Inquiry into the 2002 General Election

Transcription

1 Inquiry into the 2002 General Election Report of the Justice and Electoral Committee Forty-seventh Parliament (Tim Barnett, Chairperson) March 2004 Presented to the House of Representatives

2 I. 7A Contents Recommendations...3 Introduction...6 Focus of inquiry report...6 Fundamental review of the Electoral Act Election broadcasting regime...11 Election expense rules...21 Supervision of donations...22 Section 71A of the Electoral Act Tolerance level between electoral boundaries...24 Management of advertising hoardings...26 Unregistered parties and the Electoral Act Green minority view...28 ACT minority view...29 Appendix A: Committee procedure, membership and reports...30 Appendix B: Issues for further consideration...33 Appendix C: Submissions received...36 Appendix D: Inquiry terms of reference...37 Appendix E: Colmar-Brunton poll on donations to political parties

3 Inquiry into the 2002 General Election Recommendations The report of the Justice and Electoral Committee makes the following recommendations to the Government: that it undertake a fundamental review of the law relating to parliamentary elections and that this review be completed and any changes be in place for the 2008 General Election. We would envisage that the Justice and Electoral Committee would have a role in that review. that the recommendations listed below relating to the election broadcasting regime made in the reports of the Electoral Law Committee and the Justice and Electoral Committee on the 1996 and 1999 General Elections be implemented for the 2005 General Election that the additional recommendations listed below made by this committee be implemented for the 2005 General Election. Recommendations from select committee reports on the 1996 and 1999 General Elections The Justice and Electoral Committee recommends to the Government that: 1. Broadcasters returns of election programmes be due within 10 working days after the end of the month in which a general election is held. 2. Broadcasters returns of election programmes be required to show the date on which each election programme was broadcast. 3. The Broadcasting Act 1989 be amended so that the Electoral Commission is no longer required to invite broadcasters to make offers of free or discounted time. This would not remove the allocation of free time for opening and closing addresses which TVNZ and Radio New Zealand are required to provide. 4. The provision for the allocation of time and funding in by-elections be removed from the Broadcasting Act The Electoral Act 1993 be amended to exclude the additional members from participation in Electoral Commission decisions to refer election broadcasting matters to the Police. 6. The Electoral Commission not be entitled to transact business under Part 6 of the Broadcasting Act 1989 whenever the additional members constitute a majority at a Commission meeting. 3

4 7. The Electoral Act 1993 be amended to enable the Electoral Commission to exercise its jurisdiction under Part 6 of the Broadcasting Act 1989 if the position of an additional member is vacant. 8. Part 6 of the Broadcasting Act 1989 be amended to require the period covered by broadcasters returns of election programmes to be 3 months prior to polling day. 9. Part 6 of the Broadcasting Act 1989 be amended to direct the Electoral Commission to refer a matter to the Police if it considers that an offence under Part 6 of this Act has been committed without reasonable excuse. 10. The Electoral Commission have the power to apply section 76A (the power to vary allocations) for any non-compliance with conditions of the sort described in section 74A(3) of Part 6 of the Broadcasting Act Part 6 of the Broadcasting Act 1989 be amended to provide a time period, based on sections 214BA-214BD of the Electoral Act 1993, for a party to submit accounts for election broadcasting to be paid from the party's allocation. 12. Part 6 of the Broadcasting Act 1989 be amended to provide that the period for bringing a prosecution be 6 months from the date that the broadcasters returns are due. 13. Part 6 of the Broadcasting Act 1989 be amended: (a) (b) to require broadcasters to keep all records and papers necessary for verifying election broadcasting returns for a period of 6 months from the date the return is required, and to make these available to the Electoral Commission on request to provide a fine not exceeding $20,000 for non-compliance with the above. 14. The Electoral Commission be required to make broadcasters returns of election programmes available for public inspection. 15. By majority, the Broadcasting Act 1989 be amended to include a clear distinction between an election programme promoting a constituency candidate and an election programme promoting a political party. 16. The Broadcasting Act 1989 be amended to make it clear that section 70(3) applies only to news or comments or current affairs programmes broadcast free of charge to a candidate or a party. Additional recommendations made by this committee The Justice and Electoral Committee recommends to the Government that: 1. Political parties be enabled to access electronic lists of non-voters, if available. 2. The place of community access radio in relation to the requirements concerning broadcasting during parliamentary elections be considered as part of the fundamental review. 4

5 3. When the guidelines produced by the Electoral Commission in relation to political broadcasting are next reviewed that the position relating to community access radio programmes be specifically addressed. 4. Consideration be given to amendments to the law to enhance access to election broadcasting on television for people who are deaf or hearing-impaired. 5. By majority, that all political parties who receive public money under the Broadcasting Act 1989 caption the television broadcasts funded by that allocation. 6. The sum for allocation to parties for election broadcasting should be increased and that, taking account of the increases in broadcasting costs since 1990, the new figure for allocation at the 2005 General Election should be $3.212 million (inclusive of GST). We also recommend the sum for allocation should, thereafter, be automatically linked to movements in the consumer price index. 7. The Broadcasting Act 1989 be amended to make it clear that to be eligible for an allocation of time or money, a political party must give notice under section 70A that it considers it will qualify for an allocation and that it intends, or does not intend, to submit a party list. 8. The eligibility date for an allocation be the dissolution or expiry of Parliament. 9. Only registered parties be eligible for an allocation. 10. Section 76A(4) of the Broadcasting Act 1989 be amended: (a) to state the meaning to be given to the phrase where effect has been given in whole or in part to an allocation (b) to include failure to submit a list of candidates for election to the seats reserved for those members of Parliament elected from lists as one of the circumstances under which the Electoral Commission can vary an allocation even though effect has been given in whole or in part to that allocation (c) to include a significant change in the relationship between a party that has received an allocation and any other party as one of the circumstances under which the Electoral Commission can vary an allocation even though effect has been given in whole or in part to that allocation. 11. Electoral officials review the guidance provided on election expenses and advertising rules to see if it can be simplified. 12. Clarification be provided on whether a constituency candidate s broadcasting may promote a party or its list, and on whether a party s broadcasting may promote a constituency candidate. 13. Paragraph (a) of section 71A of the Electoral Act 1993 be replaced by a new paragraph that requires a statement to the effect that the party is an organisation which aims to acquire and exercise political influence through the election of members of the 5

6 party to the New Zealand House of Representatives whether in the name of the party or through another party of which the party is a component party. This will require consequential amendments to section 63(2)(ca) and to section 63A(2)(da) of the Act. 14. Amendments to electoral legislation for the 2005 General Election include national guidelines on hoardings. Introduction 1 The Justice and Electoral Committee resolved to conduct an inquiry into the 2002 General Election on 11 December By convention, following a general election, a select committee inquiry is conducted into the law and administrative procedures of that election. This process ensures that a multi-partisan approach is taken to matters relating to the review and reform of the law and administration relating to parliamentary elections, and that the public has the opportunity to make submissions. 2 We have noted the frustration of previous committees with the lack of legislative priority given to the recommendations made in recent general election inquiry reports. Three substantive reports were presented to the House following the 1996 and 1999 General Elections 1 and a number of the committees recommendations were included in the Electoral Amendment Act A significant number, particularly in relation to the election broadcasting regime, have yet to be realised in a legislative form despite Government support for them. 3 We also note the comments made in 2001 by the Government s Election Framework Taskforce that the cycle of select committee inquiry, Government response and legislative change: hampers the effective planning and preparation of the electoral agencies. It reduces the chances of legislative changes actually being passed, which frustrates all of those Ministers, officials and select committee members who have worked to develop solutions to past problems. And it reduces the likelihood that any agency is going to develop more than piecemeal change to the individual provisions that have caused a recent problem. The result is an Electoral Act riddled with ad hoc fixes and additions, and very limited capacity in the system to consider the overall effect of the changes being made. 2 Focus of inquiry report 4 It was against this backdrop that we resolved to adopt a much narrower focus to our inquiry than has been the practice in previous inquiries. We requested the views of the three electoral agencies responsible for conducting elections (the Electoral Commission, 1 I.17A, April 1998; I.17B, November 1998; I.7C, December Report of the Election Framework Taskforce, Ministry of Justice, Wellington, June 2001, p

7 the Chief Electoral Office and the Electoral Enrolment Centre) on the issues we could usefully focus on, given that many matters requiring attention after the 1999 General Election were tidied up in the Electoral Amendment Act In doing so, we also asked these agencies to assess the conduct of the 2002 General Election according to the factors suggested by the previous Justice and Electoral Committee in its review of the 1999 General Election. The results were: Significant factor 2002 result 1999 result (where available) Level of enrolment, as a percentage of those who are eligible to enrol 94.2 percent 91.1 percent Turnout of those enrolled to vote Turnout amongst Maori, Pacific peoples and youth Number of early votes cast Numbers of special votes cast and disallowed Levels of public understanding of the voting system 77 percent of all enrolled voters 58 percent of voters on the Maori roll Pacific peoples and youth not separated out 6.45 percent of voters cast advance votes percent of voters cast special votes 15.2 percent of candidate and 6.9 percent of party special votes were disallowed The Electoral Commission s post-election survey showed 79 percent of those aged 18 and over understood the function of the Party Vote. Chief Electoral Office: voter survey; new split vote analysis and survey of informal votes also suggest good knowledge of MMP. 85 percent of all enrolled voters 71 percent of voters on the Maori roll Pacific peoples and youth not separated out 5.22 percent percent percent for both in 1999 The Electoral Commission s post-election survey showed 70 percent of those aged 18 and over understood the function of the Party Vote. Chief Electoral Office: not available in

8 Significant factor 2002 result 1999 result (where available) Number of upheld complaints and irregularities Number of plural votes Timeliness and accuracy of the preliminary count on election night Timeliness and accuracy of the official count Chief Electoral Office: 214 complaints received. Two candidates out of 593 referred to the Police by Chief Electoral Office for failure to file election expense return. The Electoral Commission referred two parties to the Police in relation to election expenses. The Electoral Commission made five reports to the Police concerning election broadcasting matters. 8 plural voters referred to the Police by Chief Electoral Office 77 percent of polling places counted by pm; 98 percent by pm Results declared accurately and on time Chief Electoral Office: not available in The Electoral Commission referred eight party secretaries to the Police in relation to provision of returns of election expenses and auditors reports. The Electoral Commission made eight reports to the Police concerning election broadcasting matters. Not available No comparable statistics available but results were substantially late Results declared accurately and on time 5 We congratulate the Chief Electoral Office, the Electoral Commission and the Electoral Enrolment Centre for a successful general election in Unlike the 1999 General Election, when a number of concerns about the conduct of the election were raised, the 2002 General Election was a major success. As a result of the agencies reports, we resolved to review the election broadcasting regime, the donation disclosure provisions, election advertising rules and the new provisions put in place through the Electoral Amendment Act 2002 for the last election. The terms of reference for our inquiry are attached as Appendix D. Turnout 6 All of us except the ACT member are concerned that the turnout of enrolled voters decreased from 85 percent in 1999 to 77 percent in These members recommend section 187 of the Electoral Act 1993 be amended to enable the provision of electronic lists of non-voters to political parties, if available. These members see this as helping to address turnout issues. Presently, physical master rolls from the last elections showing who has voted can be inspected by registered electors for each electorate at each registrar s office, but there is no legislative authority to supply a list of non-voters. 8

9 Recommendation We recommend to the Government that: Political parties be enabled to access electronic lists of non-voters, if available. Fundamental review of the Electoral Act After consideration, we concluded it would be more useful if a fundamental review of the Electoral Act 1993 was undertaken so that any changes to the legislation could be put in place for the 2008 General Election. We believe the Government should undertake this review, taking account of the need for appropriate consultation with the public and with the committee. The review should include the possible reform of: electoral organisational structures State funding election broadcasting rules party donations disclosure regime the Electoral Act 1993 to include Part 6 of the Broadcasting Act 1989 a common start date for broadcasting of all types of election programmes Part 6 of the Broadcasting Act 1989 to include a procedure for establishing the start date for opening addresses the taxation status of political parties. 8 We recognise this recommendation represents a major resource and legislative commitment but we endorse the view of the Election Framework Taskforce noted above. We consider the present piecemeal nature of changes to the electoral provisions is no longer sustainable and it is time for a substantive review of these provisions. In particular, we concur with the view of the Electoral Commission expressed after the 1996 General Election that the current system of allocating time and funds to political parties for election broadcasting is unfair and unsatisfactory, and that the procedures required by the [Broadcasting] Act are very time-consuming, cumbersome and expensive. 3 Recommendation We recommend to the Government: That it undertake a fundamental review of the law relating to parliamentary elections and that this review be completed and any changes be in place for the 2008 General Election. 3 Submission of the Electoral Commission on the inquiry into the 1996 General Election, p

10 Statutory start date for opening addresses 9 By convention the Prime Minister proposes the start date for opening addresses and the Commission then consults with all parties and broadcasters to reach an agreement on a date. The Commission believes this arrangement is unsatisfactory as there are potential difficulties if agreement amongst parties cannot be reached and this could affect the broadcasting of parties opening addresses. The Electoral Law Committee (I.17B, 1998) recommended that the Act set out a procedure for establishing the start date for opening addresses. The National Government s response to this recommendation was to disagree, as it believed current arrangements permit a flexible and consultative approach to agreeing a start date. Most of us support removing existing potential for confusion about the different start dates for all types of election programmes, and believe this must be addressed through the fundamental review. Tax liabilities of political parties 10 Our attention has been drawn to the significant compliance costs that political parties face in providing tax returns as single entities, even though they are non-profit organisations that may be organised in branches or divisions largely run by volunteers. 11 Section CB 4 (1) of the Income Tax Act 1994 describes categories of exempt income for the purposes of income tax. These include income derived by friendly societies, charities, organisations for the improvement of standards of dairy cattle, the promotion of amateur sport and the beautifying of cities. All such activities have wide social benefit. Some would argue that the same applies to the work of political parties. This matter should be considered as part of the fundamental review. Community access broadcasters 12 We urge the production of clear guidelines for community access broadcasters. We received one submission from the Association of Community Access Broadcasters Aotearoa/New Zealand expressing concerns in relation to community access broadcasting. The submitter raised a number of issues including the need under the Broadcasting Act for balance in programmes, and guidance on and legal assistance in interpreting the statutory requirements relating to political broadcasting. Recommendation We recommend to the Government that: The place of community access radio in relation to the requirements concerning broadcasting during Parliamentary elections be considered as part of the fundamental review. When the guidelines produced by the Electoral Commission in relation to political broadcasting are next reviewed that the position relating to community access radio programmes be specifically addressed. 10

11 Election broadcasting regime 13 As noted above, three substantive committee reports on the 1996 and 1999 General Elections have already been presented to the House. The recommendations from the April 1998 report that dealt with the election broadcasting regime were agreed by the Government and reflected in the Broadcasting (Election Broadcasting) Amendment Bill introduced in September This bill remained on the Order Paper for the remainder of the 45th Parliament, was carried over to the 46th Parliament, but was formally discharged by the Government in February Apart from amendments in 1996 as a result of the change to MMP and to transfer responsibility for allocations from the Broadcasting Standards Authority to the Commission, there have been no substantive changes to the operation of the current election broadcasting regime since its introduction for the 1990 General Election. 14 The recommendations of the two select committee reports produced in respect of the 1996 General Election (excluding those issues which we consider can be dealt with as part of the fundamental review) are straightforward changes that the Commission has said will greatly assist it with respect to the allocation of broadcasting time and money for the next general election. Our focus therefore has been on picking up these recommendations and re-stating them in our report. We have also included three recommendations from the report on the 1999 General Election that relate to the broadcasting regime and administration of the allocation process, together with a few recommendations arising from our consideration of the 2002 General Election. If implemented these changes will make the current regime more workable for the Commission pending the fundamental review noted above. We consider that these recommendations should be enacted by mid- November 2004 so that they can come into force before the commencement of the allocation process for the 2005 General Election. Access to broadcasts for people who are deaf or hearing-impaired 15 We recommend the Government consider amendments to the law to enhance access to election broadcasting on television for people who are deaf or hearing-impaired. 16 Most of us are supportive of the submission made by Captioning Access New Zealand, which asked that all electoral information be broadcast in accessible formats to all New Zealanders, including deaf and hearing-impaired voters. Most of us recommend accordingly that all political parties who receive public money under the Broadcasting Act caption the television broadcasts funded by that allocation. Most of us note that this reflects the current practice of the majority of parties, and of all three electoral agencies. United Future and ACT members note that all three agencies voluntarily captioned the bulk of their advertising, as did five of the 10 political parties, and whilst favouring captioning, United Future and ACT believe that making captioning mandatory is impracticable and undesirable. Recommendation We recommend to the Government that: Consideration be given to amendments to the law to enhance access to election broadcasting on television for people who are deaf or hearing-impaired. 11

12 Majority Recommendation Most of us recommend to the Government that: All political parties who receive public money under the Broadcasting Act 1989 caption the television broadcasts funded by that allocation. Amount of money for election broadcasting allocation 17 The most significant State assistance specifically directed to political parties in New Zealand for election campaigns is the provision of money and the free television and radio time for opening and closing addresses, both of which are now allocated by the Commission. The Minister of Justice must notify the Commission of the amount of money appropriated by Parliament for the costs of parties election broadcasts. The same sum is automatically appropriated as was made available for the previous general election unless an Act of Parliament expressly provides otherwise. The amount of $2.081 million (including GST) has been appropriated for every general election since the allocation regime was introduced prior to the 1990 election. 18 The money allocated to a party is to meet the costs of radio time, television time or production costs in such proportions as the party sees fit. Broadcasting allocations are excluded from parties election expenses. Parties are not permitted to spend their own funds on buying radio or television time but they can spend their own funds on production costs (which then count as party election expenses). 19 The majority of submissions that commented on the current election broadcasting regime supported a fundamental review of the regime. Many submitters commented that the broadcasting allocation amount has not increased since 1990 but is now allocated amongst an increased number of parties. A number of submitters favour parties being able to spend their own funds within a spending cap and having the freedom to choose how best to spend their allocation. 20 While the wider issue of how parties should be able to spend their funds is a matter for the fundamental review, we agree the question of the allocation amount should be addressed now and any changes put in place for the 2005 General Election. The basis on which an increased sum should be set is, however, more difficult to determine. The ACT member believes the committee should resolve these issues now rather than leave them to a later review. 21 One option is to base the increase on movements in the consumer price index (CPI) since For example, the CPI increased by 23.7 percent between the 4th quarter of 1990 and the 3rd quarter of Applying that increase to the sum provided for the 2002 General Election would have meant that $2.574 million (including GST) was provided for allocation to parties at that election. This option has the advantage of basing the increase on a publicly available statistic that allows easy calculation of the sum to be allocated. 22 Another option is to try to base an increase on changes in radio and television broadcasting costs, which we understand have exceeded increases in the CPI. The Commission s media agency, Carat New Zealand, estimates that the average quarterly peaktime rates for television broadcasting across the three free-to-air mainstream channels will 12

13 have increased by 57 percent between 1994 and The submission from the Radio Broadcasters Association estimates that radio broadcasting rates increased by 45 percent between the 1990 and 2002 elections. Applying those rates of increase to parties overall expenditure on television and radio broadcasting at the 2002 election suggests that the sum provided for allocation in 2005 should be $3.212 million (including GST). 23 We recommend the sum for allocation to parties for election broadcasting should be increased and that, taking account of the increases in broadcasting costs since 1990, the new figure for allocation at the 2005 General Election should be $3.212 million (including GST). We also recommend the sum for allocation should, thereafter, be automatically linked to movements in the CPI. Recommendation We recommend to the Government that: The sum for allocation to parties for election broadcasting should be increased and that, taking account of the increases in broadcasting costs since 1990, the new figure for allocation at the 2005 General Election should be $3.212 million (inclusive of GST). We also recommend the sum for allocation should, thereafter, be automatically linked to movements in the Consumer Price Index. Eligibility for an allocation of time and money 24 Political parties are required to provide notice to the Commission if they believe they qualify for an allocation of time or money. It is not clear if this notice is a condition of eligibility and we agree that the Broadcasting Act should be amended to make it clear that the notice is a condition of eligibility. Parties should also, at this point, be required to indicate whether or not they intend submitting a party list. 25 Current law provides that a party is eligible for an allocation at a normal general election if it is registered at least 3 months before Parliament is dissolved for the election, or if it has at least five constituency candidates 3 months before dissolution. Two issues arise from this. 26 First, the eligibility cut-off 3 months before the dissolution of Parliament can have a retrospective effect when a general election is held earlier than expected but not so early as to bring the early election provisions in section 76C of the Broadcasting Act into effect (in which case the eligibility date for registered parties is writ day). The result is that some registered parties contesting a general election are not eligible for an allocation, yet they are not permitted to spend their own funds on buying broadcasting time. We agree this is anomalous and recommend that the eligibility date for an allocation should be the date on which Parliament is dissolved or expires. 27 Secondly, the provision allowing unregistered parties to be eligible for an allocation if they have at least five constituency candidates at the eligibility date was included as a transitional provision for MMP. Including unregistered parties in the allocation process creates compliance costs for the Commission, and no unregistered party has ever received a final broadcasting allocation. We consider that eligibility should be confined to registered 13

14 parties in order to ensure that parties have some degree of public support before being eligible for an allocation of public funds. Recommendations We recommend to the Government that: The Broadcasting Act 1989 be amended to make it clear that to be eligible for an allocation of time or money, a political party must give notice under section 70A that it considers it will qualify for an allocation and that it intends, or does not intend, to submit a party list. The eligibility date for an allocation be the dissolution or expiry of Parliament. Only registered parties be eligible for an allocation. Variation of allocations 28 Section 76A of the Act gives the Commission the power to vary a party s allocation if there is a significant change in the circumstances on which that allocation was based, thus avoiding unfairness and subversion of the allocation process. 29 Where effect has been given in whole or in part to an allocation to a party, however, section 76A(4) restricts the Commission s power to vary that allocation to cases where: (a) The registration of that political party is cancelled under section 70 of the Electoral Act 1993; or (b) It is satisfied that a false representation in relation to the number of persons belonging to the political party who were to be constituency candidates for seats at the election was made by or on behalf of the political party; or (c) It is satisfied that the number of seats for which persons belonging to the political party or group of related political parties are nominated as constituency candidates at the election is less than five. 30 Three issues have arisen concerning the Commission s power to vary an allocation: The Broadcasting Act does not state what counts as effect having been given in whole or in part to an allocation. This has meant that in relation to allocations made to parties in the circumstances described below, the Commission had to confront what the Crown Law Office has described as difficult interpretive issues where the correct interpretation is not without some doubt. The tentative conclusion of the Crown Law Office was that the correct interpretation of section 76A(4) is that allocations of time and money are given effect to in terms of section 76A(4) when the first broadcast in respect of the allocation goes to air or when the first payment is made by the Commission, whichever occurs first. The Crown Law Office acknowledged, however, that this interpretation was not without doubt since, for example, a party may use its own funds or some of its allocation to pay production costs prior to the first broadcast going to air. We recommend that the meaning of the phrase in section 76A(4) where effect has been given in whole or in part should be stated in the Broadcasting Act. 14

15 The Broadcasting Act allows the Commission to vary an allocation if a party fails to nominate a party list. However, that is not known until nomination day that is 3 to 7 days after parties are able to begin broadcasting on writ day. As noted above, the Broadcasting Act does not allow the Commission to vary an allocation to a party if effect has been given to its allocation, even though it is not contesting the election on the same basis as other registered parties. The retention of a whole allocation made to a registered party that fails to nominate a party list while still standing at least five constituency candidates gives those candidates access to a source of public funding for their campaigns that is not available to all other candidates. We recommend accordingly that, even though effect may have been given in whole or in part to an allocation made under section 73 or section 74A of the Broadcasting Act, the Electoral Commission be able to vary an allocation of a political party which has failed to submit a list of candidates for election to the seats reserved for those members of Parliament elected from lists pursuant to section 127 of the Electoral Act. In making its allocations, the Commission may not allocate time or money to an individual party if that party has received an allocation as part of a group of related political parties. The status of a party as a component party can change right up until the day before polling day. A party that has given effect to an allocation and then becomes a component party would receive an unfair advantage if the Commission could not vary its allocation. We therefore recommend that, even though effect may have been given in whole or in part to an allocation made under section 73 or section 74A of the Broadcasting Act, the Electoral Commission be able to vary an allocation where the relationship of the political party in respect of which the allocation has been made has changed to a significant extent with any other political party. Recommendation We recommend to the Government that: Section 76A(4) of the Broadcasting Act 1989 be amended: (a) to state the meaning to be given to the phrase where effect has been given in whole or in part to an allocation (b) to include failure to submit a list of candidates for election to the seats reserved for those members of Parliament elected from lists as one of the circumstances under which the Electoral Commission can vary an allocation even though effect has been given in whole or in part to that allocation (c) to include a significant change in the relationship between a party that has received an allocation and any other party as one of the circumstances under which the Electoral Commission can vary an allocation even though effect has been given in whole or in part to that allocation. 15

16 Broadcasters returns of election programmes 31 Broadcasters are required to submit their returns of election programmes within 10 working days after polling day. This is at odds with the billing arrangements of broadcasters who generate accounts at the end of the month. We agree this should be amended to require returns within 10 working days after the end of the month in which a general election is held. To assist the Commission in scrutinising the returns they should also include the dates on which each election programme was broadcast. Recommendations We recommend to the Government that: Broadcasters returns of election programmes be due within 10 working days after the end of the month in which a general election is held. Broadcasters returns of election programmes be required to show the date on which each election programme was broadcast. Allocation of free and discounted time 32 We agree with an earlier Electoral Law Committee (I.17A, 1998) that saw no value in retaining the provisions requiring the Commission to correspond with every broadcaster in New Zealand inviting offers of free or discounted time for parties election broadcasting and to circulate responses to eligible political parties. Broadcasters have a statutory obligation to respond. However, in reality these offers generally reflect the discounts that are available to all advertisers. If the provisions are removed the Commission would be able to commence the allocation process closer to an election rather than the current 8 to 9 months before Parliament is due to expire. This change would not remove the allocation of free time for opening and closing addresses that TVNZ and Radio New Zealand are required to provide. Recommendation We recommend to the Government that: The Broadcasting Act 1989 be amended so that the Electoral Commission is no longer required to invite broadcasters to make offers of free or discounted time. This would not remove the allocation of free time for opening and closing addresses which TVNZ and Radio New Zealand are required to provide. By-elections 33 The Broadcasting Act currently allows an allocation of time and money to political parties for the broadcasting of election programmes at by-elections. We understand that, despite this provision, no government has ever made funds available for an allocation for a by-election and no broadcaster has ever been invited to provide time. We agree this allocation is an anomaly and should be removed. We note a constituency candidate s election expenses limit at a by-election is $40,000 compared to $20,000 at a general election. 16

17 Recommendation We recommend to the Government that: The provision for the allocation of time and funding in by-elections be removed from the Broadcasting Act Electoral Commission vacancies 34 The Commission recommended amendments to improve the way it functions and to remove any potential for perceived political interference in the Commission s decisions about possible offences in relation to election broadcasting. The additional members appointed to represent the Government and Opposition parties should not participate in any decisions that relate to election broadcasting matters that may be referred to the Police, nor should the Commission be able to transact business if the additional members are in the majority at a Commission meeting. The Commission should be able to exercise its jurisdiction if the position of an additional member is vacant. We agree all these changes should be made. Recommendations We recommend to the Government that: The Electoral Act 1993 be amended to exclude the additional members from participation in Electoral Commission decisions to refer election broadcasting matters to the Police. The Electoral Commission not be entitled to transact business under Part 6 of the Broadcasting Act 1989 whenever the additional members constitute a majority at a Commission meeting. The Electoral Act 1993 be amended to enable the Electoral Commission to exercise its jurisdiction under Part 6 of the Broadcasting Act 1989 if the position of an additional member is vacant. Extension to period covered by broadcasters returns of election programmes 35 An earlier Electoral Law Committee (I.17B, 1998) recommended that broadcasters returns should cover election programmes broadcast over a longer period and not just those broadcast between writ day and polling day. It recommended the period be 3 months prior to polling day. We agree. Recommendation We recommend to the Government that: Part 6 of the Broadcasting Act 1989 be amended to require the period covered by broadcasters returns of election programmes to be 3 months prior to polling day. 17

18 Referral to the Police 36 There is no provision in the Broadcasting Act that specifically directs the Commission to refer a matter to the Police if it considers an offence has been committed. Similar provisions are contained in the Electoral Act and we agree there should be consistency between the two pieces of legislation. We agree the Commission should be required to refer possible offences to the Police unless there is a reasonable excuse for the apparent breach. Recommendation We recommend to the Government that: Part 6 of the Broadcasting Act 1989 be amended to direct the Electoral Commission to refer a matter to the Police if it considers that an offence under Part 6 of this Act has been committed without reasonable excuse. Parties to provide Commission with details of bookings 37 The Commission has the power under section 74A of the Broadcasting Act to include conditions concerning the manner in which any political party is to spend its allocation. These conditions may include requiring the political party or group of related political parties to advise the Commission of the value of the election programme bookings made by the political party or group of related political parties (see section 74A(3)). The Electoral Law Committee recommended that the Commission have the power to vary allocations where there was non-compliance with conditions of the sort described in section 74A(3). We agree with this recommendation. Recommendation We recommend to the Government that: The Electoral Commission have the power to apply section 76A (the power to vary allocations) for any non-compliance with conditions of the sort described in section 74A(3) of Part 6 of the Broadcasting Act Prescribed time for the submission of accounts 38 We agree that periods for payment of parties election broadcasting accounts from their allocations should be introduced and should be consistent with those in the Electoral Act that cover the payment of parties election expenses. Recommendation We recommend to the Government that: Part 6 of the Broadcasting Act 1989 be amended to provide a time period, based on sections 214BA-214BD of the Electoral Act 1993, for a party to submit accounts for election broadcasting to be paid from the party s allocation. 18

19 Extension to the time for bringing a prosecution 39 We support the recommendation of an earlier Electoral Law Committee (I.17B, 1998) that the deadline for bringing a prosecution be 6 months from the date the broadcasters returns are due. This timeframe is consistent with that for prosecutions for false returns under section 210A of the Electoral Act. Recommendation We recommend to the Government that: Part 6 of the Broadcasting Act 1989 be amended to provide that the period for bringing a prosecution be 6 months from the date that the broadcasters returns are due. Retention of records 40 Considerable checking and investigation is required by the Commission before it can form a view as to whether an offence in relation to broadcasting returns has been committed. The Commission recommended to a previous Electoral Law Committee (I.17B, 1998) that broadcasters be required to retain information on which their return is based for 6 months from the date the return is due, and for this information to be made available to the Commission on request. This would simplify the current process but would create a new offence. We support this change, and recommend an amendment to Part 6 of the Broadcasting Act to provide a fine not exceeding $20,000 for non-compliance with the requirement for broadcasters to retain records and papers necessary for verifying election broadcasting returns. Recommendation We recommend to the Government that: Part 6 of the Broadcasting Act 1989 be amended: (a) to require broadcasters to keep all records and papers necessary for verifying election broadcasting returns for a period of 6 months from the date the return is required, and to make these available to the Electoral Commission on request (b) to provide a fine not exceeding $20,000 for non-compliance with the above. Broadcasters obligations to give identical terms 41 The Act requires broadcasters to offer identical terms to each political party or candidate for broadcasting time. In their post-election returns, each broadcaster is required to show each election programme it has broadcast during the election period and the rate charged for that programme. Non-compliance is an offence. However, in reality advertising rates can vary considerably from those published by broadcasters in their rate cards. Advertising rates are subject to a number of variables (such as early bookings and volume discounts) which can have the effect of producing different terms and different rates for parties advertising on the same day in the same time zone and for the same duration. It is not clear whether the differences in rates charged as a result of these variables can be regarded as a breach. The Commission is not required to make broadcasters returns 19

20 available for public inspection so parties and candidates are not able to check rates charged to others. 42 We agree it is questionable whether the objectives of the Act in this regard are being met. We support an earlier Electoral Law Committee (I.17B, 1998) that argued favouritism in respect of one party or candidate by a broadcaster should be prohibited but that this should not prevent full commercial negotiations continuing between broadcasters and parties and candidates. To assist in ascertaining whether favouritism exists, we recommend that the Commission should be required to make broadcasters returns of election programmes available for public inspection. Recommendation We recommend to the Government that: The Electoral Commission be required to make broadcasters returns of election programmes available for public inspection. Promoting candidates and parties 43 One aspect of the election broadcasting regime that parties, candidates, and broadcasters find very confusing concerns the distinction between election programmes promoting parties and those promoting constituency candidates. This distinction is of crucial practical importance because different rules currently apply to the broadcasting of each type of election programme: The broadcasting of election programmes promoting constituency candidates may begin 3 months prior to polling day, which is normally about 2 months before writ day, at which point the broadcasting of election programmes promoting a party may begin. An election programme promoting a party must be paid for from the party s allocation. The costs of an election programme promoting a constituency candidate are an election expense for the candidate. A constituency candidate may broadcast an election programme that refers to a party or its policies in connection with his or her own candidacy, but that programme cannot promote the party or its list. It is unclear whether a broadcast promoting a party may also promote the candidacy of a constituency candidate. 44 Failure to comply with the rules relating to broadcasting of each type of election programme is an offence under section 80 of the Broadcasting Act. Anyone convicted of such an offence is liable to a fine of up to $100, Under MMP, it is likely that many constituency candidates may wish to broadcast election programmes that will also promote a party vote for the candidate s party. We agree that the current rules lead to confusion and put broadcasters, candidates, and parties at considerable risk in undertaking election broadcasting in an MMP environment. 20

21 46 Most of us endorse the recommendation of an earlier Justice and Electoral Committee (I.7C, 2001) that the Broadcasting Act be amended to include a clear distinction between an election programme promoting a constituency candidate and an election programme promoting a political party. We also agree that a decision needs to be made on whether a constituency candidate s election programme should be able to promote a party or its list, and whether a party s election programme should be able to promote a constituency candidate, and the law amended accordingly. Recommendation We recommend to the Government that: Clarification be provided on whether a constituency candidate s broadcasting may promote a party or its list, and on whether a party s broadcasting may promote a constituency candidate. Majority Recommendation Most of us recommend to the Government that: The Broadcasting Act 1989 be amended to include a clear distinction between an election programme promoting a constituency candidate and an election programme promoting a political party. Election programmes 47 Some candidates and parties have paid broadcasters or programme providers to broadcast programmes that could be categorised as news or current affairs (for example, interviews or talkback programmes). As such, these programmes may appear to be exempt from the restrictions on election broadcasting imposed by the Broadcasting Act, since section 70(3) allows unrestricted broadcasting of news, comment or current affairs programmes relating to elections. An earlier Justice and Electoral Committee (I.7C, 2001) considered it desirable for the law to be clear that an election programme involving payment by or on behalf of the candidate or party cannot also count as a news, comment, or current affairs programme. We agree and recommend that the Broadcasting Act be amended to make it clear that section 70(3) applies only to news or comments or current affairs programmes broadcast free of charge to a candidate or a party. Recommendation We recommend to the Government that: The Broadcasting Act 1989 be amended to make it clear that section 70(3) applies only to news or comments or current affairs programmes broadcast free of charge to a candidate or a party. Election expense rules 48 The rules for candidates and parties election expenses are complex and the submissions we received, particularly from media organisations, suggest there is confusion 21

22 and uncertainty about the application of the election expense regimes. The consensus amongst those who submitted on this issue was that the rules relating to election advertising, including election expenses should be reviewed to see if they can be made simpler for both the media and parties. We considered the regimes in Australia, Canada, Germany, and the United Kingdom. Germany and Australia do not have limits but both Canada and the United Kingdom have limits on election expenditure, along with wider definitions of what constitutes election expenditure. New Zealand falls in between with some but not all expenses limited. 49 We do not consider there is a need for any further legislative changes at this point, although we agree this area should be considered as part of the fundamental review. We recommend, however, that electoral officials review the explanatory material they provide on election advertising rules to see if it can be simplified and to determine whether there is a need for more user-friendly guidelines for the media and candidates. Recommendation We recommend to the Government that: Electoral officials review the guidance provided on election expenses and advertising rules to see if it can be simplified. Supervision of donations 50 There is no requirement under the Electoral Act for an individual donor to disclose any donation he or she may make. The onus for disclosure lies entirely on the individual candidate or secretary of each registered party. Not all donations need to be disclosed, only those contributions of an amount that exceeds a certain aggregated threshold. The donation totals disclosed, therefore, do not represent all of the donations that a party or constituency candidate may have received. 51 Under current law, it is possible for political parties and candidates to accept substantial donations from anonymous individuals and organisations. We note that the Commission has, since the 1996 General Election, frequently drawn attention to this practice, which has seen large amounts of money being received anonymously by parties and to the apparent role of some organisations in combining donations from a number of sources and making a single donation to a party, thus disguising the true sources of those donations. We note that the Commission considers that the ability of parties to receive large anonymous donations subverts the purpose of a disclosure regime for donations. 52 The committee asked for evidence that transparency laws have enhanced the confidence of electors in the integrity of voting regimes. Scandals involving breaches of laws relating to political funding may reduce public confidence. This must be weighed against the objective of transparency. 53 Such rules are hard to apply and enforce. They are frequently altered and extended. For example, rules limiting donations to political parties may result in donations to front organisations (in US terminology, political action committees) that promote causes thinly 22