Think of these things: whence you came; where you are going; and to whom you must account

Was The Moment of Truth an election advertisement?

I gave the ODT my thoughts on "The Moment of Truth" event last night - the tl;dr of which is that there are some important questions about the issue of data collection and surveillance to be addressed, but that the involvement of Dotcom (in particular) in it was regrettable.

Since then, I've had a couple of media folks asking me whether the event ought to have been subject to regulation under the Electoral Act. One of those folks was Radio Live's Sean Plunket, who pushed me pretty hard to give him the "yes" answer he wanted as a part of his crusade against Dotcom (won't be going back there again!). The other is the NZ Herald's much more mild-mannered Issac Davidson, whom I trust will be a bit more objective about things in print tomorrow.

My short answer to both of them was, it's unclear. A slightly longer one would be, it's a wee bit complicated. And the much longer and more legalistic one follows.

The crux of the issue is whether The Moment of Truth event constitutes an "election advertisement". That requires two things. First of all, the event has to be an "advertisement". Then, it has to be able to "reasonably be regarded as encouraging or persuading voters to ... [vote for a party] or [not vote for a party]."

I'm going to assume for the sake of not having to write a million words that The Moment of Truth could reasonably be regarded as doing the latter - either encouraging people to vote for Internet-Mana (due to the participation of Laila Harre and Kim Dotcom in it), or at least persuading them not to vote for National (due to the frequent negative comments about John Key and exhortations to use your vote to denounce the Government's actions).

The key question, then, is whether the event was an "advertisement" in the context of the Electoral Act. Now, clearly there was advertising for the event - lots of posters/on-line banners/etc telling people to turn up or tune in to it. But that advertising didn't contain any message about the election per se; it simply said "this event is going to happen". So it's the actual town-hall event at which the speakers delivered their messages that must be an "advertisement" for the Electoral Act to have any bite.

Now, there is no definition of what is and what isn't an "advertisement" under the Electoral Act - this is the issue that Darren Watson is in court over at the moment, in regards his "Planet Key" song. That judgment may give us a little more clarity over exactly what forms of communication are caught by this term.

[Update: I've been made aware of this statement from the Electoral Commission:

"The Electoral Act requires parties to account for spending on election advertising. The Internet Party sought advice from the Electoral Commission about the advertising for the Moment of Truth, and was given advice that the advertising was not an election advertisement."

So that rather makes this whole post a bit redundant ... sorry about that!]

[Update 2: Turns out that statement was from the Internet Party, reporting what the Electoral Commission told it ... sorry about that!]

Purely for the sake of moving the discussion on, let's say that you (or, rather, a court) conclude that the town hall meeting with its speakers is an "advertisement" in the context of the Act. That makes the event an "election advertisement" (actually, it's also a "party advertisement", but the point isn't important here). Does that fact then mean that the Internet Party - which I'm going to assume paid for the whole deal - then has to incorporate and declare (at least some of) the costs associated with holding it as part of its "election expenses"?

Over on Kiwiblog, David Farrar raises the issue like this:

Another interesting discussion is whether the Internet Party should declare the cost of the Moment of Truth as a campaign expense, and would this push them over the spending limit? Their expenses return is going to be very closely scrutinised and Iā€™d be very nervous if I was the party secretary.

That got me thinking - maybe there's some sort of past common practice here that could be used as a guide for how The Moment of Truth event might be viewed. So, for instance, if previous events of a similar nature have been included regularly in parties' election expense returns, then that might be an indication as to how the Internet Party should treat this one. Not, I hasten to note, a definitive answer to the question - it'll still be a matter of law that past behaviour alone can't resolve alone - but still an interesting indication of how other players in the game view the rules.

So I took a look back at 2011, and sure enough here is the National Party holding their campaign launch at Sky City convention center just a few weeks before polling day (i.e. well within the regulated period where parties are limited in what they can spend on "election expenses"). There's no mistaking the message sent by this event - it undoubtedly "may reasonably be regarded as encouraging or persuading voters to ... vote for a party." And the hire of that venue wouldn't come cheap,* I'm sure - not to mention all the associated costs of staging such a professional and ritzy event. So, did National consider this spending to be an "election expense" that had to be included in its overall expenditure cap and disclosed after the election?

Apparently not. There's no mention of it as a separate expense anywhere in the Party's 2011 election return. And given that National listed as separate expenses three "Events - Mystery Creek, Canterbury Showday, Womens Expo's", the fact it didn't include the cost of the campaign launch as its own thing makes me think that the Party just didn't consider it to be an election expense that needed listing.

Other parties, however, took a different approach. Labour's election expense return included a breakdown of the costs incurred for its "Launch/Campaign Rally", including the cost of hiring Auckland Girls' Grammar to hold it in. As did the Act Party. So let's just say that there appears to be some divergence of opinion amongst political parties as to whether the cost of these sorts of events count towards their overall election expenses.

However, we also can say that if the Internet Party is required to include at least some of the cost of The Moment of Truth event in its 2014 election expense return, then it would appear on the face of things that National's 2011 return was false in a material particular. Or, alternatively, National's interpretation of what is and is not an election expense may be the correct one. In which case, the Internet Party has nothing to fear.


* I note that the Electoral Commission, in its Party Secretary Handbook, states that:

The costs of food, hall hire, surveys or opinion polls, free labour or replacing materials destroyed through no fault of the party are not election expenses.

The last three things - surveys or opinion polls, free labour or replacing materials destroyed through no fault of the party - specifically are exempted under the Act. I'm not sure why the Commission also confidently states that "hall hire" is similarly exempt ... but if there's some judicial interpretation of the legislation I've overlooked, please feel free to let me know in the comments section!