No, yes, no. Will parallel campaigners be allowed to publish positive advertisements?

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“No”, “yes”, “no”. No, not the New Zealand batsmen’s calling during their second innings in Hamilton but the answer to whether parallel campaigners are going to be allowed to publish advertisements encouraging voters to vote for a particular party or candidate.

Earlier in the week the government announced its reform package for electoral finance laws. I hope to blog my thoughts about the package shortly but in the meantime I want to say something about the regulation of parallel campaigns (third parties under the Electoral Finance Act 2007) and make a couple of comments about the select committee’s upcoming consideration of the Bill (when it is introduced into the House).

After the government initially announced the package it was unclear whether third parties would be allowed to publish advertisements encouraging voters to vote for a particular candidate or party without first being authorised by the candidate or party. (Parallel campaigners are required to obtain authorisation under the Electoral Act 1993 as it stands at the moment.)

Paragraph 75 of the Minister of Justice’s paper to the Cabinet Domestic Policy Committee seemed to make it plain that the requirement was being retained (parallel campaigners would not be allowed to run positive ads):

This will effectively create a more transparent regime than under the status quo, where the only requirement is for parallel campaigners to place their name and address on an election advertisement and obtain written authorisation where advertising supports the election of a constituency candidate or political party. Instead there will also be a central point where the details of parallel campaigners could be readily accessed by the public and the media, making it easier for people to inquire into the identities of parallel campaigners. (My emphasis.)

However Colin Espiner wrote that the authorisation requirement was being ditched and that positive ads would be allowed:

In addition, lobby groups will be able to advertise for as well as against political parties – raising the possibility of “back door” donations that get around the limits on what politicians can spend.

When David Farrar disagreed, Espiner responded on his blog saying that he had tripled-checked with Power’s office (and later blogged about the issue):

I have triple-checked this with Simon Power’s office (have you?) and I have been told emphatically that there will be NO restrictions on positive third-party ads, and they WILL NOT count towards a party’s campaign spending limit.

Power then made some ambiguous comments in the House in response to questions from Metiria Turei which could have been read as indicating that there would be no restrictions on third parties running positive advertisements.

The confusion was eventually cleared up when Espiner reported that the current authorisation requirements would be retained:

[Power] also announced that lobbyists running supportive campaigns for a party would have to seek the party’s consent, and they would count towards that party’s spending limit.

The upshot is that parallel campaigners will once again be restricted from endorsing candidates and parties without their consent. (Jesse also already blogged about the value of advertising here.)

However parallel campaigners may be subject to further regulation, with Power seemingly leaving the door open to the government accepting a cap on how much parallel campaigners can spend if consensus can be reached in the select committee. Espiner reports that:

Power confirmed in Parliament yesterday that under legislation being drafted to replace the repealed Electoral Finance Act, parallel campaigners would not face restrictions on spending or what they said during campaigns.

However, after an outcry from Labour and the Greens, Power said he was prepared to revisit the proposal if a select committee could agree on a suitable alternative.

This raises the interesting prospect that the select committee may make significant changes to the reform package. If the select committee does that the public may be denied an opportunity to have any comment on those changes. This was a danger that the New Zealand Law Society warned of in its submission to the Ministry of Justice in response to the Ministry’s Proposal Document:

2.2 … The usual select committee process can result in a committee recommending significant amendments to a bill based on public submissions, officials’ recommendations, and caucus input. These recommendations are then reported to the House without the opportunity for further public input on these amendments or how they have been drafted. In order to create legislation that is both clear and durable, the select committee that considers the bill should release an interim report seeking submissions on any amendments it proposes before it finally reports to the House.

2.3 The consultation process will of course be determined by the select committee that considers the bill and not by the Government or the Minister of Justice. However the Society encourages all members of Parliament, when referring the Bill to the Select Committee to:

(a) encourage the select committee to seek a second round of submissions on amendments that the committee proposes to recommend; and

(b) set a report back timetable for the bill that allows this to occur.

As far as I am aware, the government has not responded to the Law Society’s submission (if anyone knows of any government response, please let me know). Given that it appears that significant amendments could be made by the select committee, I hope that Parliament will follow the Law Society’s urging. It is one thing for parliamentarians to agree that their own spending should be capped but it would be quite another for them to decide that the spending of non-party and candidate groups should be capped, especially without giving the public an opportunity to comment on the proposal.

One final thought. The government appears to have committed itself to not acting unless there is a broad consensus in favour of any new rules. As Professor Geddis has noted, the government’s main concern appears to be to ensure that “the current political players are all on board with any alteration to the law”. As David Farrar has pointed out, objections from Labour and the Greens to changing the broadcasting rules has effectively killed any reform in this area.

Does this mean that if any of the other parties in Parliament object to capping the spending of parallel campaigners, such an amendment is also off the table? If it does, my reading of ACT’s submission is that they would be opposed to any cap on spending by parallel campaigners.

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One Response to “No, yes, no. Will parallel campaigners be allowed to publish positive advertisements?”

  1. Gregory Duran Says:

    Just discovered your website and I think it’s awesome. I have you bookmarked so I can return and check out some more articles. It’s apparent you know what you’re talking about…

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