In New Zealand, the state strongly regulates broadcast advertising by political parties, with both registered and unregistered parties being prohibited from purchasing any advertising on television and radio at election time, apart from that which is allocated to them by the Electoral Commission. Officially, the broadcast advertising ban is intended to inhibit parties from ‘buying’ electoral success, but in practice it advantages the larger parties who receive substantially more public funding for broadcast advertising than the smaller parties. [Read more below]
Essentially, parties are banned from spending their own money on television advertising. (However, parties are allowed to spend their own funds on the production costs for their permitted broadcasts.) This is an anomaly, in that the parties can spend their own money on advertising in other mediums such as newspapers and magazines.
The restriction particularly disadvantages cash-rich parties that might wish to spend money to compete more evenly against Labour and National. Combined with the unequal division of official broadcasting money, this ban means the Act party and others are restrained from competing on a level playing field. In effect, Act has been limited to broadcast expenditure of about 20 percent of that of Labour and National in 1996, 21 percent in 1999, and 27 percent in 2002. According to Act, ‘This is censorship. The only justification for the legislation under which this censorship was imposed can be that Parliament intended that equal time be made available for all parties. Any other allocation is contrary to the principle of free speech, undemocratic and must be an attempt to influence the outcome of the election’ (Tate, 1999: pp.1-2; See also: Pinto-Duschinsky,1997, who points to the Czech Republic, India, Mexico and Japan, as having equal or nearly-equal distribution of broadcasting time or money to parties). McRobie has supported this view, saying, ‘the differential allocations of state funding and broadcasting time appear to run counter to the long-standing objective of providing all who seek elective office with equality of opportunity’ (McRobie, 2001: p.190). Act MP Stephen Franks says, ‘The current system was designed when there were two parties, keen to make sure that others couldn’t get in’ (quoted on TV3, 2002). Representing another minor party, Green MP Rod Donald has agreed, saying ‘It’s inherently unfair for the two main parties to get the bulk of the funding, and for other parties to not even be able to spend their own money to get a level playing field’ (quoted on TV3, ibid).
When other countries, such as Australia and the United States, have attempted to introduce similar bans, they have failed because such laws have been interpreted as violating citizen rights to freedom of speech. For example, in the early 1990s, the Australian Labor Government ‘enacted legislation to prohibit political advertising in the electronic media….. In the event the ban was ruled unconstitutional by the High Court in 1992 on the grounds that it prevented freedom of political communication’ (Jupp and Sawer, 2001: p.227). However, when the legislation was introduced to New Zealand, the Attorney General decided that it did not violate the Bill of Rights Act (Robertson, 1999a: p.20). This restriction was introduced though a Supplementary Order Paper which is not subject to Bill of Rights vetting.
Bernard Robertson has also argued that because of the existence of other election spending rules, the ban on buying election broadcasting time is unnecessary. The limitations on total expenditure in the Electoral Act mean that for high spending parties, the money spent on broadcasting is money they cannot spend on other forms of campaigning. Robertson also believes that ‘The root of the problem is the idea that there should be any control on electoral expenditure. Such controls are simply a restriction on freedom of expression and are also inequitable in effect’ (quoted in Hunt, 1996). Act asserted a similar view in their Minority Report to the Electoral Law Select Committee Inquiry into Broadcasting in the 1996 General Election:
Act New Zealand wishes to stress its view that political parties should be free to spend their own funds on advertising as they see fit and does not believe that taxpayer funds should be allocated for this purpose. Act New Zealand would be prepared to fund an advertising campaign entirely out of funds provided by its members and supporters but is banned from doing so (Electoral Law Committee, 1998: p.15).
In a worse position than Act, parties that receive no state funding are denied any right to participate in broadcast advertising at all. The most significant examples of this are New Zealand First in the 1993 general election and the Progressive Coalition Party in 2002, when both parties did not meet the eligibility criteria for the allocation of broadcast time and were prohibited from purchasing their own time from their own funds. (However, individual candidates may broadcast – subject to their $20,000 limit – even if their parties do not receive broadcasting funding).
In 1993 the National Party proposed allowing parties to buy limited amounts of television advertising time, but this was opposed by Labour (MacLennan, 1993). National’s proposal would have allowed parties ‘to spend their own money on purchasing airtime for advertising, up to a maximum limit of 50 percent above the largest allocation to any one party’ (ibid). Broadcasting Minister Maurice Williamson promoted the proposal with the view that ‘New parties and smaller parties will now be able to have at least some broadcasting time if they wish’ (quoted in MacLennan, ibid). Again in 1995 National proposed that a party should ‘be able to top up its tax-payer allocation to a level 25 per cent above the highest such allocation’, but failed to find enough support to pass the change (Luke, 1996). Surprisingly, the only party to support National was the Alliance, ‘which argued it would help small parties to air their policies’ (ibid). In 1999 the proposal was defeated yet again, with National’s coalition allies and the opposition parties – except for Act – opposing the proposed changes (Laxon, 1999b).
One of the biggest criticisms of the regulations relating to broadcasting has come from within the Electoral Commission itself. After 1996, the Electoral Commissioner, Paul Harris, told the Electoral Law Select Committee that ‘the current system of allocating time and funds to political parties for election broadcasting is unfair and unsatisfactory and the procedures required by the Act are very time-consuming, cumbersome and expensive’ (Harris, 2002b). These criticisms were repeated again after the 1999 general election. Then following the 2002 election, Harris called for a revamp of the rules on broadcasting funding, adding that, ‘A party should then be free to buy time for election broadcasting, subject only to a modest increase in the current limit on its election expenses, and perhaps also to a secondary limit on its election broadcasting expenditure’ (ibid). According to Harris, the current rules are unfair, confusing and restrictive. He also admitted the anomaly of the ban on broadcast advertising, saying that parties ‘can spend their own funds on newspaper advertising and maybe it’s time to bring election broadcasting out of the area it’s been restricted to’ (quoted in TV3, 2002). Harris described the Progressive Coalition’s exclusion from advertising in 2002 as ‘undesirable and undemocratic’ (quoted in Milne, 2002e). By contrast, in some other countries, such as Italy, electoral broadcasts are equal and free for all parties (Bianco and Gardini, 1999: p.26).
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