Legal Beagle by Graeme Edgeler


All is Forgiven, or: The Happy Consensus


Winston Peters is proud to be the independent MP for Tauranga, and about to contest his first election leading New Zealand First. In the year or so before the election, the National and Labour parties arrange between themselves to support an amendment to the Broadcasting Act* so that New Zealand First wouldn’t qualify for a broadcasting allocation. And the broadcasting allocation is all you’re allowed to spend on party broadcasts on TV or radio – you can’t spend your own money – so New Zealand First couldn’t have any radio ads at all.

New Zealand First has been sore about that ever since.

Fast-forward to 2005. Now 13 MPs strong, New Zealand First gets an allocation of $200,000. The 27 MP-strong National Party gets a public allocation of $900,000. Winston was sore about that too.

The Don Brash-led National Party spends up large on TV and radio advertising. Government MPs are later quoted as saying they could tell National had overspent the broadcasting limit, so much advertising was being broadcast.

How much more than Labour did it spend on broadcasting? Actually, it was $83,287.63 less. National got $1,012,493.48 of broadcast advertising, and Labour got $1,095,781.11. Yet the law declared National had had the unfair advantage, and only it committed an offence against the Broadcasting Act.** That election – whose election and broadcasting regulation aims to achieve a level playing field – ended up seeing the Labour Party with an overall advertising spending limit $340,000 higher than National; theirs in turn was more than $1m higher than New Zealand First’s.

That’s bad in itself, but it’s the broadcasting rules that particularly grate. These public funds – provided it vastly different sums to the large parties than the smaller ones, with parties outside Parliament getting even less – are the only money that can be spent on TV or radio advertising. The public funds are also the spending limit, and a party with a $10,000 allocation just isn’t allowed to compete with the established forces, even if they could get 20% of the country to stump up with $10 each to help them do it. The same rules prohibited Television New Zealand from re-broadcasting the opening statements on TVNZ7, and got the Alliance in trouble for a public access radio broadcast airing before writ day.

These rules are the single worst aspect of our election financing system. And the problems with them aren’t new.

The Electoral Commission has been calling for a complete overhaul of the entire system since 1996. 1996 was the Commission’s first election. They’ve repeated those complaints basically every election since. They’ve made slow progress – the political appointees who used to be appointed to take part in the allocation process (one Labour, one National) went with the Electoral Finance Act.

But despite the myriad problems, and the near-universal condemnation, these rules won’t change one bit in the newly announced consensus election financing laws.

Why? Well, the Labour Party opposes change. And the Green Party opposes it too.

The Green Party led by Rod Donald didn’t, but Rod Donald is dead. Back in the day, the Greens thought there should be a separate spending limit on electronic broadcasting, but that it should be same for all parties.

Today, the Labour Party and the Green Party prefer a system where at the next election, National may get a longer opening address than Labour and will probably get more public funds to spend on broadcast advertising than Labour, and will have a higher spending spending limit than Labour. In the interests of fairness and democracy, apparently.

Rod Donald had a better idea. An idea supported by the Greens, and the Alliance, and United Future and ACT. The report of the vaunted Select Committee Inquiry into the Review of MMP records that:

The ACT, Alliance, Green and United parties considered that the current regime should be replaced by a more equitable system of funding. ... The smaller parties noted that under the current regime their allocations are often too small to be effective in terms of television or radio coverage. They felt a general purpose allocation would give them the flexibility to decide how best to use this money in terms of their participation in the democratic process.

Which was pretty much Option B (moderate reform) in the Government’s recent discussion document on election finance reform.

Of course, that was in 2001. Party policy changes over time. So back to Rod Donald: here he is in Parliament in late 2004.

I also would want that inquiry to look into the full issue of the broadcasting funding regime. On the face of it, there is an anomaly at the moment that the two old parties get the bulk of broadcasting funding, which is self-perpetuating, whereas, every other party is barred from spending their own money to match the spending of the two old parties. Personally, I do not think that that is fair, although it is a matter of some debate within our own caucus.

Rod still supported it, although it seems no longer to have been Green Party policy. There was debate within the party – a healthy thing – but Rod kept fighting the fight: here he is in Parliament the next year:

I also might add a personal note that I think it is time that we looked at the issue of parties being able to spend their own money for election broadcasting. It is not a Green Party policy, but there is a certain inequality at the moment in that the two old parties got $600,000 each at the last election and the next ranked parties got $166,000. There is a big gap in between and it perpetuates the system that the two old parties got three times as much exposure through the broadcasting media than any other party. I think it is time for that to be looked at and I am pleased that the commission keeps calling for that to happen, but I am disappointed that the Government does not get on with it. I say to get on with it now, get this inquiry under way before the election, because it never seems to happen in time following an election. Now is the time to start.

Two days later, he seems to have convinced them: the Green Party’s submission to the Electoral Commission, presented jointly by Rod and then campaign manager Russel Norman (and repeated in 2008 by co-leader Russel Norman and campaign manager Gary Reese) includes the following:

We believe the current allocation system should be replaced by a more equitable system of funding political parties to enable them to participate in the democratic process. We would suggest a model similar to the Australian one, in which parties receive funding immediately after an election based on their share of the vote at that election. We do, however, support the maintenance of a cap on the dollar value of parties’ electronic broadcast advertising. We request that the Commission makes recommendations to the Government along these lines.

There should also be a thorough investigation into whether parties should be allowed to spend their own funds on electronic broadcasting up to a spending cap in order to remove the extraordinary advantage currently enjoyed by the two main parties due to the much larger financial allocations they receive from the Commission. We request that the Commission conduct such an investigation.

Rod Donald was right; Winston Peters was right; The Alliance was right, and ACT was right.

There is much room for debate in how to change the broadcasting allocation, there is absolutely no room to debate whether it must change. I say this a lot, and by the time I’ve finished writing this post, will probably have paraphrased myself five times, but the current system regulating election broadcasting is completely indefensible. This is a big call. Just about everything has an argument that can be made for it, even if you’d come out against it on balance. Not this.

The current regulation of election broadcasting is anathema to a fair electoral system. And it makes a mockery of our support for freedom of expression. And despite knowing this, the Government won’t fix it. The reason given in the cabinet paper is particularly galling:

Alongside this, any significant reform of the broadcast allocation will require substantial amendment of Part 6 of the Broadcasting Act 1989, and possibly its entire repeal and replacement with new bespoke provisions in the Electoral Act 1993. This would raise questions about whether the existing prohibition on campaign advertising by the general public on radio and television is a justifiable limit of the right to freedom of expression under the New Zealand Bill of Rights Act 1990.

Let me translate that for you ...

We recognise that the current ban on individuals putting political ads on TV and radio or even running political advocacy slots on access radio is unreasonable and unfair. It breaches the Bill of Rights and is not justifiable in a free democracy. However, this ban was passed in 1989 before the Bill of Rights was law in New Zealand. If we were to amend other bits of the Broadcasting Act now, we might have to re-enact this prohibition, and this would result in the Attorney-General telling everyone that the National Government doesn’t like free-speech, and is ignoring the fundamental human rights of all New Zealanders.

We don’t want him to say that, so if we make no changes to the Broadcasting allocation, we can avoid facing the reality that we’re unreasonable limiting New Zealanders’ freedom of speech, which we’re aware of now, but don’t want to do anything about.

This is an appalling view to take. If the Government knows that one of its laws is unjustifiable in a free and democratic society, it should act to fix it. And it certainly should not use that fact as a reason not to fix something else!

In the debate over how to fix our election financing laws, ACT would argue that there should be no financial limits on election advertising. And when they lost that argument, they’d argue that there should be no separate financial limit on broadcast election advertising. The Green Party might argue for both – a spending limit for parties, and a smaller spending limit within that overall total for broadcast advertising. Both arguments have merit: for ACT, the more information people have with which to make their decision, the better; for my imaginary Green Party, broadcast advertising does not really inform the populace, and published leaflets and manifestos contain the information people actually need to to be able to make informed voting decisions.

Let’s have that debate.

Unfortunately, the only way we can have that debate is if Parliament tells the Government to stuff off when it brings it’s election finance to the vote. Without dealing with the Broadcasting Act, any reform of our political financing system is worse than useless. This is our major opportunity to get this right. If there’s Parliamentary consensus on a flawed system this time ’round, that’s probably it for a political generation. If the major parties in Parliament get to jack up the retention of this appalling system – prohibiting new parties (or old ones – how much will New Zealand First be allocated in 2011?) from challenging them on the airwaves – again, then democracy won't be dead, but it sure won't be working.

It will be too late at the Select Committee. Parliament’s rules prevent a bill amending one law – and amending the Electoral Act is basically all that the bill will do – from being changed into a bill amending another. Even if we convince every MP on the select committee of the need for a fair system of election broadcasting regulation, they won’t be able to put one in there. It may be now or never.

Until Labour accepts the need for reform and until the Greens heed the call from Rod Donald for parity in our electoral laws, then I will have to assume that the concerns about the lack of spending limits on third parties (and broadcasting) in the MMP referendum stem from the same naked political self-interest that seems to drive this. Maybe the Greens will come out and say that there should be no political advertising on TV at all. Fine. That view’s defensible. It’s the law in the UK, and has been upheld by the Judicial Committee of the House of Lords as being proper in a democracy. But even though I wouldn’t go for it, all parties are treated the same, as all parties must be treated the same. ACT and the Māori Party should be telling the government they won't support election finance reform without election broadcast reform. In short, the happy consensus needs to evaporate.

The current system can’t be defended as necessary to make the system fair, or to ensure that smaller voices aren’t overwhelmed by rich and powerful special interests – arguments that were used in defence of the Electoral Finance Bill – this isn’t a level playing field, it’s a statutorily-mandated unlevel playing field. Differing levels of taxpayer funding are probably justifiable, but actively prohibiting smaller players from making up some of the difference with their own money is so wrong I cannot think of a single argument to commend it.

A spending limit of $1m for National’s election broadcasting needs to be a $1m spending limit for Labour’s election broadcasting, and that same limit needs to apply to the Green Party and ACT, even if their call on the public Treasury is somewhat less. What Rod Donald and Russel Norman called “the extraordinary advantage ... enjoyed by the two main parties” is as bad today as it was when they asked the Electoral Commission to speak out against it in 2005.

John Boscawen will put up the good fight, but he’s no Winston.*** Winston would never have let Parliament debate election finance without reminding them of 1993, and this might have been the time he could have exacted political retribution. But that excess was just the most blatant of the iniquities. Banning your political opponents from advertising is about as low as things can get in a democracy, but with the limits the funding allocation imposes on parties outside Parliament now, we’re not much better.

* If someone can explain to me exactly what happened, I’d be grateful. I’ve looked at the legislation, and can’t see it, but it’s something everyone who’s followed Parliament for some time knows occurred.
** Actually, the broadcasters probably committed offences by running the ads, and TVNZ was actually convicted of a Broadcasting Act offence, albeit for broadcasting an election ad between two opening addresses.
*** Both of them will probably consider this a compliment.

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