6.1 Introduction

The Electoral Referendum Act 2010 sets out the rules for advertising published on the 2011 referendum on the voting system. The key messages are:

• Referendum advertisements published from 1 January 2011 until 25 November 2011 must include a promoter statement.
• Parties publishing referendum advertisements will be ‘promoters’ under the Electoral Referendum Act 2010.
• Promoters must register with the Electoral Commission if they spend, or intend to spend, over $12,000 on referendum advertising in the regulated period.
• Registered promoters cannot spend more than $300,000 on referendum advertising in the regulated period.
• Registered promoters who spend more than $100,000 on referendum advertising in the regulated period must file expense returns.
• The full cost of advertisements that are both referendum and election advertisements are to be counted as both referendum and election expenses.
• A referendum advertisement cannot be published on polling day.
• Campaigning on polling day is a criminal offence.

This part of the Handbook explains these rules in more detail.

The referendum 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.

REFERENDUM ADVERTISING

6.2 All referendum advertisements must contain a promoter statement

All referendum advertisements published from 1 January 2011 until 25 November 2011 (the day before polling day) must include a promoter statement featuring the name and address of the person that has initiated or instigated it (‘the promoter’).

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 promoter statement requirements for referendum advertisements are the same as for election advertisements with any necessary modifications. For further information on the promoter statement requirements see section 4.2.

6.3 What is a referendum advertisement?

A referendum advertisement is an advertisement in any medium that:

• is published in the period from 1 January 2011 until 25 November 2011 (the close of the day before polling day), and
• may reasonably be regarded as encouraging or persuading voters to vote, or not to vote, in a particular way in the referendum.

[See section 31 Electoral Referendum Act]

The Electoral Referendum Act does not define ‘advertisement’ but because the definition of ‘referendum 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 an advertisement is open to an interpretation that it is a ‘referendum 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, in a particular way in the referendum. This is an objective test. It is based on content and context regardless of whether the advertisement refers by name to a particular option in the referendum, or whether the encouragement or persuasion to vote, or not to vote, is direct or indirect.

All requirements in respect of referendum advertisements apply to:

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

The Electoral Commission is happy to discuss any questions that arise in respect of referendum advertisements.

6.4 What is not a referendum advertisement?

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

• editorial content (see section 4.2 for further information),
• personal political views online (see section 4.2 for further information),
• statements that do not promote a particular option in Part A or B of the referendum voting paper.

6.5 Broadcasting

The Electoral Referendum Act 2010 and the Broadcasting Act 1989 do not restrict the broadcasting of referendum advertisements. However, third party promoters will need to carefully consider whether any broadcasting that they undertake about the referendum falls under the definition of an ‘election programme’ for the purposes of the Broadcasting Act. Third parties are not permitted to broadcast election programmes. Third parties would need to be very careful not to include, for example, anything that appears to encourage voters to vote or not vote for a particular party (see Part 4 for further information).

If you are not sure whether a referendum advertisement is an election programme, you can seek the view of the Electoral Commission.

6.6 Polling day activities

Referendum campaigning on polling day is prohibited and is a criminal offence. The full list of prohibited activities is set out in section 197 of the Electoral Act 1993 and effectively prohibits anything on polling day which can be said to interfere with or influence voters, including processions, speeches or public statements. Please consult section 197 for further information.

The election prohibitions apply with any necessary modification to referendum activities. For example, any activities (including advertising) that promote a particular option on the referendum are prohibited on polling day. For further information see Part 4.

6.7 Referendum lapel badges

Third party promoter and their supporters can wear a referendum lapel badge (or rosette). Persons promoting both the referendum and a party at the election can wear a party lapel badge (or rosette) and a referendum lapel badge.

The Electoral Commission advises parties to include a promoter statement on its party lapel badges as they may be considered to be an election advertisement.

Likewise, third party promoters should include a promoter statement on any referendum lapel badge initiated by the third party.

Supporters may wear referendum lapel badges in public on polling day. A referendum lapel badge is a badge or rosette designed to be worn on the lapel and bearing the third party’s name, emblem, slogan or logo. Do not display the lapel badge on vehicles or in other places on polling day.

Because the regulated period ends at midnight on the day before polling day, the costs incurred in relation to referendum lapel badges or rosettes only worn on polling day are not a referendum expense. If a referendum lapel badge or rosette is worn at any time during the period beginning 26 August 2011 to 25 November 2011 (the regulated period), the costs incurred must be counted as a referendum expense. If a registered promoter cannot be sure that its supporters will not display referendum lapel badges or rosettes prior to polling day the Electoral Commission advises registered promoters to count the expense as a referendum expense.

REFERENDUM EXPENSES

6.8 Expenditure limit

An unregistered promoter’s referendum expenses during the regulated period must not exceed $12,000 (including GST).

A registered promoter’s referendum expenses during the regulated period must not exceed $300,000 (including GST).

The regulated period starts on 26 August 2011 and ends on 25 November 2011.

6.9 Registration

The Electoral Referendum Act 2010 requires individuals or organisations who spend, or intend to spend, more than $12,000 (including GST) on referendum advertising during the regulated period to register as a registered promoter with the Electoral Commission (see Part 3 for details of registration).

6.10 Referendum expenses

A promoter’s referendum expenses are the costs of:

• referendum advertisements (see section 6.3) in any medium,
• that is published, or continues to be published, during the regulated period, and
• is promoted by the promoter, or any person authorised by the promoter.

Promoters’ referendum expenses include:

• the cost incurred in the preparation, design, composition, printing, distribution, postage and publication of the referendum advertisement,
• the reasonable market value of any material used for the advertisement, including materials provided to the promoter free of charge or below reasonable market value,
• the entire advertising expenses of an advertisement that is both a referendum advertisement and an election advertisement (see section 6.12 for further information on accounting for these expenses).

Certain costs are not referendum expenses including the costs of surveys or opinion polls, volunteer labour or replacing materials destroyed through no fault of the promoter. The exclusions are the same as apply to advertising expenses under the Electoral Act. For further information see section 5.4 above.

6.11 Referendum expenses paid before or after the regulated period

Expenses paid for or incurred either before the regulated period or after polling day must be included in the return to the extent to which they relate to referendum advertisements published within the regulated period.

Where a referendum advertisement is published before and during the regulated period, the promoter is responsible for apportioning the referendum expenses so that only a fair proportion of the expense is attributed to the regulated period.

6.12 Expenses for joint referendum and election advertisements

For advertisements that are both referendum advertisements and election advertisements no apportionment is allowed. The referendum expenses for a joint referendum and election advertisement is the total cost of the advertisement.

For example, if a third party promotes an advertisement that supports a particular option in the referendum and also encourages people to vote for a party, the entire cost of that advertisement must be accounted for twice by the third party. First as an election expense and second, as a referendum expense. The same costs will also need to be counted as an election expense for the party.

See Appendix D for a summary of how referendum advertisements are to be accounted for and Appendix E for an example of how third party referendum and election expenses are allocated between a third party and a party or candidate.

6.13 Paying referendum expenses

Invoices for referendum expenses must be sent to the promoter within 20 working days of the official result of the general election being declared. The Electoral Commission expects that the deadline will fall on 27 January 2012 unless there are recounts.

 

The promoter must pay any bill within 40 working days of the declaration. The Electoral Commission expects that the deadline will fall on 27 February 2012 unless there are recounts. It is an offence not to do this. Sections 59 to 60 of the Electoral Referendum Act 2010 set out a procedure to follow if a bill is disputed.

6.14 Keeping records of referendum expenses

Registered and unregistered promoters must take all reasonable steps to keep records of all their referendum expenses. All registered promoters must keep invoices and receipts for all referendum expenses of $50 or more. Records have to be retained until 26 November 2014 (for three years after polling day).

6.15 Return of referendum expenses

Registered promoters who spend more than $100,000 (including GST) on referendum expenses during the regulated period must file a return with the Electoral Commission. The return must be:

• made on form M41 Prom Exp Ref, and
• filed by Monday 26 March 2012 (within 70 working days of polling day).

The return form is available through the Electoral Commission or at www.elections.govt.nz

The form requires the registered promoter to provide details of all referendum expenses incurred, including expenses incurred by any person authorised by the promoter.

The Electoral Commission may require a registered promoter to obtain an auditor’s report if the Commission has reasonable grounds to believe that a return may contain any false or misleading information.

Registered promoters who fail to meet these requirements are committing offences and may be referred to the New Zealand Police.

The returns are open to public inspection and will be published on the Electoral Commission’s website.