4.1 Introduction

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

• Election advertisements published at any time, in any medium, must contain a promoter statement.
• Special rules apply for broadcasting election programmes on radio and television.
• Other people cannot promote the candidate or party without their written authorisation.
• An election advertisement can be published at any time except on polling day.
• Campaigning on polling day is a criminal offence.

4.2 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 [name], [relevant full street address]’.

Failing to include a promoter statement is an offence and subject to a fine of up to $40,000.

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.

The Electoral Commission advises parties to include a promoter statement on their party lapel badges as they may be considered to be an election advertisement (see Part 7 for further information on party lapel badges).

4.3 Election advertisements promoted by parties (and candidates)

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

The address can be the full street address of either the place where the party secretary usually lives or any other place where he or she can usually be contacted between the hours of 9am and 5pm on any working day. You do not always have to be physically at this address during these hours but it must be an address from where you can be contacted within a reasonable period of time. A Post Office box or website address is insufficient.

As well as promoting the party, the party may promote one or more of its electorate candidates with the written authorisation of each candidate, but the costs then have to be apportioned between the party’s election expense return and the candidate’s expense return. [See sections 204G, 205EA and 206CC of the Electoral Act].

If a party promotes an advertisement that is both a party and a candidate advertisement,

only one promoter statement is required. In this case, the party is the promoter and the advertisement will only need to include the name and address of the party secretary.

Similarly, electorate candidates may promote the party vote with the party secretary’s written authorisation and disclosure in the party’s expense return. Party advertisements promoted by the party’s electorate candidates will also need to be disclosed in the candidate’s expense return. Candidates are advised to consult the party secretary on the amount to be included in their return of candidate expenses. [See sections 204H, 205EA and 206CC of the Electoral Act].

Party advertisements promoted by a candidate must include the candidate’s name and address in the promoter statement.

We advise candidates to stay in touch with the party secretary on advertising. This is because there can be boundary problems between advertising by candidates and advertising by the party with consequential effects on the expenditure limits and expenditure returns of the candidate and the party.

Third parties cannot promote a party without the party secretary’s written authorisation (for more information see paragraph 4.7).

4.4 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 and 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.

Election advertisements that may reasonably be regarded as encouraging or persuading voters to vote, or not to vote for a party (whether or not the name of the party is stated) are called party advertisements.

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. [See section 3D of the Electoral Act].

4.5 What is not an election advertisement?

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

• editorial content,
• personal political views online,
• a member of Parliament’s contact details.

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 exemption 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 exemption does not extend to political views expressed on behalf of a party 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.

Member of Parliament’s contact details

There is also an exemption for the publication by members of Parliament of contact information. For the exemption to apply, contact information published within the regulated period must satisfy all of the following:

• be published by the member in the course of performing his or her duties as a member of Parliament,
• have been funded by the Parliamentary Service,
• have been routinely published in the same medium, no more often, and to no greater extent than, and in the same form and style as it was published before the regulated period, and
• not be combined or associated with an election advertisement.

The contact information must include all of the following:

• the member’s name,
• the member’s contact details, which can be a telephone number, physical or postal address, and/or email address, and
• the name of the electoral district that they represent or the fact that they are a list member.

The contact information may also include one or more of the following:

• a photo of the member,
• a party name,
• a party logo,
• the member’s constituency clinic times,
• the website address for the member or the member’s party.

To fit within the exemption the proposed publication cannot include anything other than ‘contact information’ as outlined above. This exemption is only available to current MP’s.

4.6 Other parliamentary publicity

A member of Parliament representing a party contesting the election may need to seek advice from the Electoral Commission on whether other parliamentary publications or signage are election advertisements.

The advice of the Electoral Commission may also be taken into account by the Parliamentary Service when determining whether to meet the cost of advertising during the regulated period. For information about what publicity can be paid for using parliamentary funds, please refer to the Parliamentary Service Publicity Guidelines which are available from the Parliamentary Service.

Whether publicity is candidate or party advertising must be determined on a case by case basis by looking at an advertisement as a whole. At one end of the spectrum, advertising expressly seeking support for a candidate or party is covered by the definitions of candidate advertisement and party advertisement. At the other, advertising an MP’s contact details is unlikely to be considered to be a party or candidate advertisement.

When considering a particular item of publicity, the following are some of the factors which indicate that it may be a party or candidate advertisement:

• references that directly or indirectly evaluate an MP and/or their party’s effectiveness/ success during the parliamentary term or previously, whether or not it includes references to any other party or candidate,
• references in the communication to the election itself,
• references, direct or indirect, to an MP’s and/or their party’s policy platform for the election, or what they will do if elected or re-elected,
• references to a candidate who is not an existing MP, and
• formatting or branding of a communication in a manner similar to the party’s own election campaign material.

The Electoral Act does not provide for apportionment of costs between publicity that contains election advertising and an MP’s parliamentary publicity. If the effect of any part of an item of publicity can be reasonably regarded as encouraging or persuading voters to vote for a party, then the item as a whole will be regarded as a party advertisement, with the total costs being attributable as an election expense.

For example, an advertisement which contains both material that can reasonably be regarded as encouraging or persuading voters to vote for a party and factual information about an MP’s contact details, is likely to be regarded as a party advertisement and the total costs of the advertisement attributed as an election expense.

Care needs to be taken to ensure that election advertisements published at any time are appropriately authorised and contain the required promoter statement. Candidate election expenses can only be incurred by or with the authorisation of the candidate, and party election expenses can only be incurred by or with the authorisation of the party secretary.

Further information of MPs is available in the Electoral Commission publication Guidance for MPs - Election Advertising Rules.

4.7 Election advertisements promoted by third parties

Third parties (persons or groups other than candidates and parties, or persons involved in the administration of the affairs of a candidate or party) can promote party advertisements but certain rules apply, including:

• a promoter statement must be included on all third party election advertising so that the public can see who is responsible for the advertisement,
• where an election advertisement is promoted by a third party they will need to register as a promoter with the Electoral Commission if they spend more than $12,000 on election advertisements during the period beginning 26 August 2011 and ending at the close of 25 November 2011 (the regulated period for the 2011 General Election and Referendum),
• advertisements promoting a party published by a third party must have the party secretary’s written authorisation. An advertisement promoting the election of one or more candidates must be authorised by each of the candidates. Advertisements promoting both a candidate and a party must be authorised by both the party secretary and the candidate,
• the costs of any third party advertisements published during the regulated period that the party secretary has authorised will count towards the party’s election expenses and will need to be disclosed in the party’s return of election expenses and donations (see Part 5) as well as counting towards the third party’s election expenses.

For further information about the rules concerning advertising by third parties see the Electoral Commission’s publication Third Party Handbook – 2011 General Election and Referendum.

4.8 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 opinion of the Electoral Commission is not legally binding but reflects the Electoral Commission’s interpretation of the law. A Court of law may reach a different view. You may wish to seek your own legal advice. 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.

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 16 December 2011 (the day after 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. [See section 204I of the Electoral Act].

4.9 Party logos

If advertising includes a party logo, a promoter statement and authorisation from the party secretary may be required. This will depend on matters such as the context, size and relative prominence of the logo and whether in the circumstances the presence of the party logo means that the advertising can reasonably be regarded as encouraging or persuading voters to vote for the party. [See section 3A of the Electoral Act].

For example, the presence of your party logo in an MP or candidate publication does not in itself make the publication a party advertisement if the size and relative prominence of the logo is consistent with the purpose of identifying the MP or candidate as an MP or candidate for the party and could not be seen as going beyond that.

4.10 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 a candidate advertisement, party advertisement, or both, for the purposes of the Act.

4.11 Radio and television advertising

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

Parties may broadcast on radio or television to advertise for the party vote, to attack another party or parties, or to promote or attack candidates. They may only do so within the period beginning with 26 October 2011 (writ day) and until 25 November 2011 (the day before polling day).

Parties may only use funds allocated by the Electoral Commission to buy election broadcasting time - they cannot use their own funds for this purpose. Parties can, however, use their own money to pay for production costs (which then become an election expense).

Parties can use their broadcasting allocation to promote an electorate candidate. Before they do so they must have the written authorisation of the candidate. Once authorised the cost of the broadcast or the portion of the broadcast that relates to the candidate will be an election expense for the candidate. The value of the broadcast will also be a donation by the party to the candidate.

The value of any free time allocated to parties for opening and closing addresses and the costs of broadcasting election programmes paid for out of the broadcasting money allocated by the Electoral Commission are specifically excluded from the definition of party election expense and do not need to be included in the party’s return of election expenses.

All broadcasts of election advertisements must include a promoter statement (see paragraph 4.2 above).

4.12 Press and other advertising

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

4.13 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 these 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 voters’ 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 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, candidate advertisement and/or party advertisement.

4.14 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 paragraph 4.5 does not apply, the promoter of the advertisement will need to include a promoter statement.

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.

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.

4.15 Broadcasting Standards Authority and Advertising Standards Authority

Election programmes on television and radio (which includes advertisements and opening and closing addresses) come within the jurisdiction of the Broadcasting Standards Authority (BSA). Election programmes must comply with the Election Programme Code which is 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).

4.16 Electoral signs

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

The Electoral Act allows for election signs 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 things 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 26 November 2011 (election day). There is no other restriction in this 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).

4.17 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 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.

A successful candidate found guilty of treating will lose his or her seat in Parliament.

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.

Parties and candidates should be cautious about providing refreshments that do not clearly fall within the above exception to avoid complaints being made during the election campaign.

4.18 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) until 25 November (the day before polling day). The prohibitions applying to electioneering on polling day do not apply during the advance voting period (for further information on restrictions on polling day see Part 7). However, parties and candidates 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).

4.19 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, are not allowed to comment on:

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

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

You 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.