4.1 Introduction

There are detailed rules in the Electoral Act 1993, the Electoral Referendum Act 2010 and the Broadcasting Act 1989 on what third parties can and cannot do when campaigning. The key messages are:

• Election advertisements published at any time in any medium must contain a promoter statement.
• Third parties cannot broadcast election programmes.
• Third parties cannot promote the candidate or party at any time without their written authorisation.
• Election advertisements can be published at any time except on polling day.
• Campaigning on polling day is a criminal offence.

This part of the Handbook explains these rules in more detail. Part 5 explains your obligations concerning election expenses. Part 6 explains the referendum advertising and expense rules.

The advertising and expenditure rules that apply to candidates are set out in the booklet Candidate Handbook – 2011 General Election and Referendum. The rules for parties are set out in the Party Secretary Handbook – 2011 General Election and Referendum.

4.2 Election advertising

All election advertising must contain a promoter statement

All election advertisements irrespective of when they are published must state the name and address of the person that has initiated or instigated them (‘the promoter’). [See section 204F of the Electoral Act].

To meet the requirements of the Electoral Act, promoter statements must include the name and address of the promoter and make it clear who has initiated or instigated the advertisement. The form of words recommended by the Electoral Commission is:

“Promoted OR Authorised by [promoter’s name], [promoter’s relevant full street address]”.

If the promoter is unregistered, and is an incorporated or unincorporated body, the promoter statement must also include the name of a member of the body who is the duly authorised representative of the promoter. For example:

“Promoted OR Authorised by [duly authorised representative’s full name], [promoter’s name], [promoter’s relevant full street address]”.

For an incorporated or unincorporated body it can be the full street address of the body’s principal place of business or head office.

For registered promoters this should be the same address as shown on the Register of Registered Promoters. A Post Office box or website address is insufficient.

For an individual, the address can be the full street address of either the place where the promoter usually lives or any other place where the promoter can usually be contacted between the hours of 9am and 5pm on any working day.

The Electoral Act does not define what is meant by ‘any other place where he or she can usually be contacted between the hours of 9am and 5pm on any working day’. The Electoral Commission’s view is that this can include for example:

• the individual’s campaign office address, or
• the individual’s work address,

provided that this is where he or she can usually be contacted between the hours of 9am and 5pm on any working day. The individual does not always have to be physically at this address during these hours but it must be an address from where he or she can be contacted within a reasonable period of time. An individual may need to consult their employer before including a work address on any election advertising.

Failing to include a promoter statement is an offence and subject to a fine of up to $10,000 for unregistered promoters and $40,000 for registered promoters.

The requirement for a promoter statement applies to all forms of election advertising in any medium. If the election advertisement is published in a visual form, the promoter statement must be clearly displayed in the advertisement. If the election advertisement is published only in an audible form, the promoter statement must be no less audible than the other content of the advertisement.

Whether a promoter statement has been clearly displayed will need to be determined on a case by case basis taking into account the type of advertisement that is published. In the Electoral Commission’s view, this does not require that a person be able to read the promoter statement from where an election advertisement is intended to be viewed, for example on a billboard while driving. However, if a person inspects an election advertisement he or she should be able to read the promoter statement.

Given that most websites allow the user to change the font size, as long as the promoter statement is included and is readable, the size is unlikely to mean that the promoter statement is not clearly visible.

Where the website or webpage is an election advertisment, a promoter statement does not need to be included in each picture, article or entry on the site, provided the promoter statement is contained on the home page or the page that contains the election advertising.

Election advertisements promoted by a third party promoter need to include a promoter statement that features the promoter’s name and address.

Advertisements promoting a candidate or party must be authorised in writing

Advertisements promoting a candidate or party published by third parties must have the written authorisation of the candidate or party.

The costs of any third party advertisements published during the regulated period that promote a candidate or party will count towards your third party election expenses and may need to be disclosed in your return of third party election expenses (see Part 5) as well as counting towards the candidate or party’s advertising expenses.

What is an election advertisement?

An election advertisement is an advertisement in any medium that may reasonably be regarded as encouraging or persuading voters to:

• vote or not to vote for a constituency candidate (whether or not the name of the candidate is stated),
• vote or not to vote for a party (whether or not the name of the party is stated),
• vote or not to vote for a type of candidate or party described by reference to views or positions that are, or are not, held or taken (whether or not the name of the candidate or party are stated).

[See section 3A of the Electoral Act]

The Electoral Act does not define ‘advertisement’ but because the definition of ‘election advertisement’ covers an advertisement ‘in any medium’ the Electoral Commission considers the term ‘advertisement’ should be interpreted broadly. For example, it is not limited to traditional forms of advertising such as newspapers, posters, billboards, leaflets, radio and TV broadcasting. The Electoral Commission’s view is that if material is open to an interpretation that it is an ‘election advertisement’ a promoter statement should be included.

The test is whether the advertisement can “reasonably” be regarded as encouraging or persuading voters to vote, or not to vote, for a party or candidate. This is an objective test. It is based on content and context regardless of whether the advertisement includes the name of a party or candidate, or whether the encouragement or persuasion to vote, or not to vote, is direct or indirect.

All requirements in respect of election advertisements apply to:

• election advertisements published in New Zealand even if the promoter is outside of New Zealand, and
• election advertisements published outside of New Zealand where the promoter is in New Zealand.

[See section 3F of the Electoral Act]

Publish means to bring to the notice of a person in any manner, excluding addressing one or more persons face to face.

[Section 3D of the Electoral Act]

What is not an election advertisement?

The legislation makes it clear that the following are not election advertisements:

• editorial content,
• personal political views online.

Editorial content

There is an exemption for the editorial content of a periodical, a radio, or television programme, or news media Internet site. The Electoral Act does not define ‘editorial content’ but the Electoral Commission’s view is that it includes any part of the publication except advertising or advertorial. A periodical is a newspaper, magazine, or journal established for purposes unrelated to the election, that has been published at regular intervals and that is available to the public.

Personal political views online

There is an exception for the publication of personal political views by an individual on the Internet or other electronic medium, provided the individual does not make or receive payment for publishing those views. Individuals expressing personal political views on social media such as Facebook and Twitter are covered by this exemption and will not need to include a promoter statement. This exception does not extend to political views expressed on behalf of a group because the exemption is restricted to the publication of personal views by an individual.

Where content posted on a Facebook or Twitter page that is an election advertisement is ‘liked’ or ‘retweeted’ by another person, it is the Electoral Commission’s view that the individual content appearing elsewhere on Facebook or Twitter will not require a promoter statement if it appears on those other pages as the expression of personal political views by an individual who does not make or receive payment in respect of the publication of those views.

Requesting an advisory opinion from the Electoral Commission

You can ask the Electoral Commission for advice on whether, in its opinion, an advertisement constitutes an ‘election advertisement’ under the law. The advisory opinion will be provided as soon as is reasonably practicable. The opinion of the Electoral Commission is not legally binding but reflects the Commission’s interpretation of the law. A court of law may reach a different view. The Commission’s view is that relying in good faith on an advisory opinion is likely to be relevant to determining whether a person had acted wilfully or taken all reasonable steps to ensure an offence was not committed but that, of course, would be a matter for the Courts to determine. You may wish to seek your own legal advice.

To request an advisory opinion please complete form M41-Adv Op (available from www. elections.org.nz). You will also need to provide the Commission with a copy of the advertisement and any relevant background information such as the details of when and how it is to be published.

The Commission will treat the proposed advertisement, any supporting material, and the advice given to the requestor as confidential until the day after the day for the return of the writ for the election. Advisory opinions will then be made available on request, subject to the Official Information Act 1982. This does not prohibit the requestor from releasing the advice at any time.

An advertisement ‘relating to an election’ [Section 221A of the Electoral Act]

Even if an advertisement does not come within the definition of an ‘election advertisement’, it must still contain a promoter statement if it is ‘advertising relating to an election’ that is published in any newspaper, periodical, poster or handbill or broadcast on radio or television,

For example, a poster promoted by a third party that encourages the public to vote or not to vote at the election or encourages voters to think about a particular issue when they vote may not fulfil the definition of an election advertisement because there is no direct or indirect reference to a candidate or party or type of candidate or party. However, the advertisement will still need to have a promoter statement on it to comply with section 221A because it is ‘election related’.

The cost of election related advertisements are not counted as part of a third party’s election expenses.

References to websites

If advertising contains a website reference, you need to consider whether the website contains material that could be election advertising. Depending on how the website is being used in the advertisement, the content of the website may be considered in determining whether the advertisement is an election advertisement for the purposes of the Act.

Radio or television advertising

There are separate rules applying to radio or television advertising as distinct from other forms of advertising. [See Part 6 of the Broadcasting Act 1989]

Third parties are prohibited from broadcasting at any time any election programme within the definition of the Broadcasting Act. An ‘election programme’ is defined as:

“a programme that—

(a) encourages or persuades or appears to encourage or persuade voters to vote for a political party or the election of any person at an election; or

(b) encourages or persuades or appears to encourage or persuade voters not to vote for a political party or the election of any person at an election; or

(c) advocates support for a candidate or for a political party; or

(d) opposes a candidate or a political party; or

(e) notifies meetings held or to be held in connection with an election”.

It includes “visual images, whether or not combined with sounds, that consist predominantly of alphanumeric text”.

Except on polling day, third parties may broadcast an advertisement that relates to an election, such as advocating for or against a policy, but it must not name or advocate for or against identifiable parties or candidates. The promoter statement must be included in the broadcast.

Press and other advertising

Advertising in forms other than radio or television can promote a candidate or party policies or attack a candidate or party policies.

Expenditure on press advertising and other forms of promotion such as hoardings are election expenses.

Canvassing and surveys

The rules relating to the requirement for a promoter statement and election expenses apply to election advertisements that are ‘published’. However, the definition of publish expressly

excludes addressing one or more persons face to face. This means that face to face canvassing activities are exempt from the requirement for a promoter statement and do not need to be considered in terms of election expenses.

Telephone canvassing and surveys are subject to the election advertising rules. The Electoral Act includes an express exemption for surveys and opinion polls from the definition of election expenses. However, this does not mean that surveys are automatically exempt per se, which is often a source of confusion. Be aware that the Courts have found that if a survey goes beyond merely eliciting voter’s views and can reasonably be regarded as encouraging or persuading voters to vote or not vote for a constituency candidate or political party (often referred to as push polling) then it will be an election advertisement.

If survey questions promote you or your party’s policies or ask questions in a leading way and direct the answers, then the survey is likely to be an election advertisement and needs to comply with the election advertising rules.

The Electoral Commission is happy to review a proposed script or survey and provide a view on whether or not it is an election advertisement.

Websites and social media

Where a website, including Facebook, Twitter or other social media, is used by a candidate, party or third party and the exemption for personal political views discussed in section 4.2 does not apply, the promoter of the advertisement will need to include a promoter statement.

Where the website or webpage is an election advertisement, a promoter statement does not need to be included in each picture, article or entry on the site, provided the promoter statement is contained on the home page or the page that contains the election advertising.

Where you pay for an election advertisement to appear unsolicited on another person’s web page, for example, a banner advertisement on Facebook, a promoter statement must be included on the advertisement itself. You cannot rely on a link back to another page which contains a promoter statement.

Broadcasting Standards Authority and Advertising Standards Authority

Broadcasting on television and radio come within the jurisdiction of the Broadcasting Standards Authority (BSA). Any broadcasting must comply with the relevant Code i.e Free-to-air television, Pay television or Radio which are available on the BSA website (www.bsa.govt.nz). Complaints are made directly to the BSA (online at www.bsa.govt.nz or PO Box 9213, Wellington).

For advice on the Code contact the BSA (phone: 0800 366 996 or email: info@bsa.govt.nz).

The content of advertising in other media (including websites) comes within the jurisdiction of the Advertising Standards Authority (ASA). Advertising must comply with the ASA Codes of Practice. The codes are available on the ASA website (www.asa.co.nz). Complaints can be made to the Advertising Standards Complaints Board (phone: 04 472 7852 or email: asa@asa.co.nz).

Electoral signs

Local authorities are responsible for regulating when, where and how signs, including election signs can be displayed. Third parties should consult with their local authority about the rules in their area before putting up any election signs.

The Electoral Act 1993 allows for election signs that promote a party or candidate up to three square metres in size to be put up in the two months before election day. This provision overrides any more restrictive local authority rules about size and timing of the display of signs.

Any local authority rules about matters like application procedures and the location and density of signs still apply. Larger signs may be put up if local authority rules allow. Signs may be put up earlier if local authority rules allow.

You must not pay an elector of a district for providing a place to exhibit a sign or hoarding in that district unless it is in the course of the elector’s business.

It is an offence under the Electoral Act to display election signs on election day. There is no other restriction in the Act on when electoral signs may be displayed.

You do not have to account for the cost of the framework used to support a hoarding as an election expense (see Part 5 for more information on what are election expenses).

4.3 Advance voting

Advance voting for those who are unable to get to a polling place on polling day will be available from 9 November 2011 (17 days before polling day up to the day before polling day). The prohibitions applying to electioneering on polling day do not apply during the advance voting period. However, third parties are asked to exercise restraint in the vicinity of advance voting facilities to avoid complaints during and after the election campaign. (Locations will be published on www.elections.org.nz).

4.4 Contact with public servants

Public servants serve the government of the day. In order to maintain the confidence of successive governments, they must act and be seen to act apolitically. Therefore, public servants, whether in national, regional or local offices, must not comment on:

• party political matters, or
• the merits of policy, or
• alternatives to policy.

If you have questions on these matters you should address them to Ministers.

You, like any other member of the public, may get information from public servants under the Official Information Act.

You can get more detailed information on contact with public servants from the State Services Commission’s website: www.ssc.govt.nz. 

4.5 Treating

Treating is the provision of food, drink, and entertainment to persons with the intention of corruptly influencing their vote and is a criminal offence. [Refer to section 217 of the Electoral Act for a full description]

The consequences of being found guilty of treating are:

• you lose your seat if you have been elected,
• you are not eligible to register as an elector for 3 years, and
• you may be sentenced to two years in prison and a $40,000 fine.

The Electoral Act states that the provision of a light supper after an election meeting does not constitute the offence of treating. The provision of a cup of tea or coffee and a light snack after a campaign meeting, therefore, is not treating.

You should be cautious about providing refreshments that do not clearly fall within the above exception to avoid complaints being made during the election campaign that you have breached the treating provisions.

4.6 Polling day activities

Campaigning on polling day is a criminal offence

Any activities (including advertising) promoting the election of a candidate or party are prohibited on polling day and are a criminal offence. The full list of prohibited activities is set out in section 197 of the Electoral Act 1993, which effectively prohibits anything that can be said to interfere with or influence voters, including processions, speeches or public statements. You should be particularly careful to avoid any grounds for complaints against you. Apparent breaches of the law are reviewed by the Electoral Commission and where appropriate referred to the New Zealand Police. Electoral Commission staff or the Returning Officer are happy to discuss any interpretation difficulties you face in respect of this prohibition.

Before polling day you must remove or cover all your election advertising that can be seen from a public place. Returning Officers are authorised to remove or cover advertising and charge the costs to the persons responsible.

Signs on vehicles, including bumper stickers, must be covered or removed. T-shirts and flags featuring party or candidate names, emblems, slogans or logos cannot be displayed on election day. For this reason, the distribution of bumper stickers, t-shirts or flags is not recommended. Once distributed, you cannot be sure that they will not continue to be displayed on polling day. You could expose your supporters to the risk of inadvertently committing an offence.

Delivery of election material on polling day prohibited

You must not deliver election material through the post or directly to mailboxes on polling day. To avoid breaches, NZ Post will not accept election material for delivery after 17 November 2011 (the Thursday in the week before polling day). To reduce the risk of postal delivery on election day third parties should also ensure that any mail is clearly identifiable as being election related. If you hand-deliver election material directly to mailboxes on the Friday before polling day, you can expect complaints by voters who think the material arrived on polling day. Those complaints will be reviewed by the Electoral Commission and where appropriate referred to the New Zealand Police.

Contacting voters

If you or your supporters are contacting voters door-to-door or by phone the Electoral Commission recommends that you use a script and advise your supporters to adhere to it to ensure that they do not make any statements that breach the law.

The script should not include reference to a candidate or party name to ensure that there can be no suggestion that the canvasser is attempting to raise the profile of a candidate or party on election day. A phone canvasser can introduce themselves as ringing on behalf of the promoter.

The Electoral Commission is happy to provide you with its view on whether any script complies with the rules for election day.

Websites

Election material does not have to be removed from a website on polling day, so long as the material on the site is only made available to people who voluntarily access it. New material must not be posted on the website on polling day. Advertisements promoting the website must not be published on polling day. You will need to ensure that public message boards and comment areas on your website cannot be added to on election day.

If you use social media, do not post messages on election day that could breach these rules.

Clothing promoting a candidate or party

Clothing (such as t-shirts) promoting a candidate or party must not be displayed on polling day.

Streamers, rosettes, ribbons etc

Streamers, rosettes, ribbons and similar items in party colours may be displayed on polling day but only on people or vehicles and must not contain candidate or party names, emblems, slogans or logos.

4.7 Imitation ballot papers

Do not print or distribute, on polling day or after midnight on 22 November 2011 (the Tuesday before polling day), anything which imitates a ballot paper (or part of a ballot paper) to be used at the election and which contains any direction or matter likely to influence a voter. Do not print or distribute on polling day any card or paper showing the candidates, even if it is not an imitation of a ballot paper.

In the past the issue has arisen as to whether election advertising in newspapers offends the legislative provision against imitation ballot papers. Whilst each case depends on its facts the use in an advertisement of a tick against a party or candidate name does not, of itself, offend the provision.