My little gonzo academic electoral law experiment

Is it now legal to use TV and radio to run mean-spirited, hatchet-job attack ads on your political enemies? I decided to find out ... so here's a reprise of what happened, having previously been recounted over at The Spinoff.

In October last year I wrote a somewhat lengthy post about the Court of Appeal's decision in The Electoral Commission v Watson & Jones.

To recap what was said there, it generally had been assumed that although the Broadcasting Act specifically permits political parties and candidates some limited freedom to place partisan ads in the three months before polling day (more on this in a moment), no one else could do so. That then freed us from having to watch (or listen to) messages like this one from the US, or this one from Australia, alongside the political parties'  taxpayer funded efforts like this or this.

However, that assumption was overturned by the court last October. In the space of a single paragraph, it reversed our previous understanding of what could and could not be broadcast around elections:

We have concluded that the prohibition [on broadcasting election programmes] is indeed confined to programmes broadcast for political parties or candidates, being those entitled to benefit from an allocation of broadcasting time under pt 6.

According to the court, the Broadcasting Act doesn’t impose a blanket ban on everyone using TV and radio for partisan political ends, before allowing political parties and candidates a limited exception. Rather, it bans only political parties and candidates from using TV and radio for partisan political ends, outside of the limited exceptions provided in the Act. Meaning that everyone else is free to use TV and radio to broadcast any election-related message that they choose.

That represents a pretty fundamental change to how election campaigning can occur in New Zealand. It allows everyone and anyone who isn’t a party or candidate to run the sort of attack ads that I linked to above. But is it really what the court’s ruling means?

To find out, I went to the commercial arm of the University of Otago’s student-owned station, Radio One, and sweet-talked them into selling me a 30-second advert slot. Then I went into Radio One’s studio and recorded my proposed advert:

“The following is a paid advertisement, authorised by Andrew Geddis, 3 Derdan St, Purakaunui. The Aotearoa Legalise Cannabis Party wants to legalise the smoking of marijuana. If elected to government, the Aotearoa Legalise Cannabis Party would stop the police being able to arrest people who possess marijuana. If, like me, you want the law to keep marijuana illegal, then you need to vote against the Aotearoa Legalise Cannabis Party at the 2017 election. Don’t legalise it, don’t vote ALCP.”

Does the Broadcasting Act prohibit Radio One from airing this slashing, nakedly partisan hatchet job on the ALCP? To find that out, I encouraged the station to write to the Commission and ask them what they think. Because despite the Court of Appeal’s ruling in October last year, the Commission’s website still told the world that:

“Individuals or organisations who are not parties or candidates (including third parties) may broadcast an advertisement which relates to an election, such as advocating for or against a policy, but it must not name or directly advocate for or against a party or candidate.” 

On Friday last week, Radio One got a response from the Commission:

“The definition of an election programme in the Broadcasting Act includes a programme that appears to encourage or persuade voters to vote or not to vote for a political party or the election of any person at an election. However, the courts have held that the election programme rules do not apply to broadcasts initiated by third parties … Assuming [Andrew Geddis] has initiated the advertising as a third party the advertisement will not be an election programme and can therefore be broadcast on the radio at any time.”

So contrary to what its website still said, the Commission accepts that the Broadcasting Act doesn't prohibit Radio One from running the recorded advert on my behalf. Consequently, on Friday evening at 10pm, my anti-ALCP message was quite legally broadcast in the middle of NORML’s regular Overgrown show: being a “weekly dose of hard-hitting ganja tunes, cannabis news, events, science and truth.”

Outside of demonstrating that I clearly have too much time on my hands and really should get myself a real job, what is the point of this little story? Well, the principle established by my experiment – that nothing stops broadcasters from airing partisan ads on behalf of persons other than parties or candidates – scales up.

What is good for me as an individual spending $20 on Radio One to tell pro-cannabis students not to vote for the ALCP is good for Don Brash’s Hobson’s Pledge outfit spending $300,000 on a month-long television advertising campaign warning New Zealanders of the threat that the Māori-Mana Party arrangement represents for New Zealand’s future. Or Federated Farmers spending some hundreds of thousands of dollars on TV and radio spots urging voters to reject the Greens and the burden they would impose on the agriculture sector. And so on.

Of course, people like me (or Don Brash, or Federated Farmers) always could spend that money telling people how to vote via other media: billboards; pamphlets; newspapers; the interwebz. And as I noted in my previous post on this matter, the Electoral Act 1993's controls on spending on election advertisements within the 3 month pre-election "regulated period" still apply to TV and radio spots. But our law traditionally has seen the broadcast media as being a special case – more expensive to access and better able to reach voters, so requiring different and more prescriptive forms of regulation in the name of protecting democratic equality.

Or, at least, we thought it required that kind of special regulation until the Court of Appeal told us differently in October. And now I’ve proved that this decision means the controls we believed applied to using the broadcast media for electioneering no longer exist for private individuals and groups. They do, however, continue to apply to parties and candidates - which means that while private individuals and groups now are free to use TV and radio to attack parties or candidates, those parties and candidates still are limited to responding using the taxpayer funded allocation given to them in the weeks prior to each election. 

Which means two things. First, the Court of Appeal decision gives us a system of regulating election broadcasts that makes little sense, and certainly would not be enacted into law today. So that is going to have to change once the 2017 election is over and we have a new parliament in place. And second, this new and largely unintended system of regulation may make the 2017 election campaign a very different one from 2014.


PS: A quick word of acknowledgment to Radio One for not balking at my proposal (and thus forcing me to threaten the with a Human Rights Act complaint), as well as to the ALCP for seeing the humour in my running an attack ad against them in the middle of a pro-dope show. Thanks!