Electoral Matters Bill

This part deals with amendments to the Broadcasting Act. One of the problems with these kinds of rules generally is that they become highly prescriptive.

Sitting suspended from 6 p.m. to 7.30 p.m.

💬 Simon Power: I raise a point of order, Mr Chairperson. There was an oversight on my part on the voting before the dinner break. I have not discussed this with the senior Government whip, but I seek the leave of the Committee to amend National’s vote from 27 to 25.

The CHAIRPERSON (H V Ross Robertson): Is there any objection to that course of action being taken? There appears to be none. I ask the member whether he refers to the vote on Part 1 as amended being agreed to.

💬 Simon Power: It was for all votes taken from 5 minutes to 6.

The CHAIRPERSON (H V Ross Robertson): Is there any objection to that course of action being taken? There appears to be none.

I point out for the benefit of listeners that Part 2 is about amendments to the Broadcasting Act. I know I will probably be breaching the Standing Orders, but I say to the young people in the gallery tonight that this is an important part of the way that elections are run.

The CHAIRPERSON (H V Ross Robertson): The member is breaching the Standing Orders.

This issue is about the way that our country has allowed public funding to help the democratic process. For a long period of time we have allowed free broadcasting to political parties at the time of an election. Typically, there is an opening speech, a closing speech, and then time for advertisements. As soon as we get into that kind of situation, of course, there is a necessity for detailed rules so that everyone is treated equally. On top of that, we now have multiple broadcasters. One of the issues that the Justice and Electoral Committee had to deal with was the fact that not every broadcaster is actually interested. Broadcasters will ask themselves: “Is it relevant enough to our listening audiences for us to broadcast the opening and closing speeches of the leaders of the respective parties?”. I suppose one could say that the public broadcaster acknowledges that responsibility.

I have to ask some deeper questions. Although National is supporting this part, this whole issue invites some profound and fundamental questions. I raise this matter because I was on the relevant select committee between 1999 and 2002. We heard substantial submissions on this kind of issue. One question the select committee asked at that time—and I know its work has informed the current select committee—was: “At what point do we say that this has all become too complicated and that it would be better to allow the parties to take that allocation of what is, in effect, public funding, and spend it as they please?” The free-choice approach would be to say that rather than forcing political parties to have a certain amount of time on radio and television, we would give them an allocation—determined on a number of formulae, based on representation in the House, polling, and so forth, so as to get some sort of fair formula—and then to leave it to the political parties to determine how they spend it.

I believe that at some point this Parliament and the relevant select committee will have to seriously address that question. We are locked, I guess, in a paradigm whereby for television and radio there is a set allocation and a formula-driven approach for each of the parties, and that is how it is done. Under the current legislation, we have to deal with the fact that there are ad breaks and all that sort of thing, and there have to be detailed rules around all that sort of stuff so that no one is disadvantaged or advantaged by that kind of process. At what point do we say that that is no longer workable?

I know that Mr Franks will remember the submissions made by various submitters between 1999 and 2000—and, no doubt, much the same submissions were given more recently—that it is becoming increasingly difficult in a more complex broadcasting environment. We are no longer in the situation whereby just Television One, TV2 and TV3 are free to air. We have multiple channels. A number of the Sky channels are also free to air. The role of the Internet was hugely important in the American election, in particular. It profoundly influenced the outcome of that election. Yet our legislation does not recognise those kinds of things. [Interruption] DrudgeReport.com was hugely important. I think it is probably time for a back-to-first-principles review of this area.

I want to respond briefly to a couple of points. Firstly, in response to Dr Mapp, yes, it is fair to say that this bill does not take a back-to-first-principles measure on any of these things. This bill is very modest in what it sets out to do. It sets out to tidy up a number of the technical issues around the broadcasting provisions in the legislation, which have been there for quite some time and have been reported on by select committees after the last 3 general elections. By putting this bill through, I was simply trying to tidy that up. I accept the point Dr Mapp made that we need to have a more general look at the Electoral Act at some point in the future. Hopefully we will get some agreement on how we will do that and how soon. There are not only broadcasting issues but a range of other issues as well that the select committee has discussed from time to time. I believe it is timely to come back and have a broader look at electoral matters, and I would be keen to see the select committee do that.

The second issue I raise is the amendment put forward by Murray Smith to clause 18. I have been asked by Mr Smith to have a close look at it, and I have done so. I have consulted my officials. Clause 18 amends the amount of time, from 30 days to 50 days. It seems that the Justice and Electoral Committee has considered the issues raised by the amendment quite seriously and thoroughly and has extended the time in which bills can be paid from 30 days to 50 days. As the select committee has come back with a unanimous view on that, and that is its recommendation, I am reluctant to make any changes. I am persuaded by the select committee’s position. Fifty days seems to me to be fine.

💬 Dail Jones: Working days?

Working days. It is a long time, and I am happy to stay with that. The last thing I will add is again in response to Mr Mapp. I accept that this is a modest bill and that we need to make some more fundamental changes later on.

The CHAIRPERSON (H V Ross Robertson): Before I call the next speaker, I will inform the Committee of the altered results for the votes on Part 1. The result for the vote on the closure motion is now Ayes 71, Noes 45. The vote on the amendment in the name of the honourable member Rod Donald to clause 4A is Ayes 17, Noes 98. The vote on the Minister’s amendments is now Ayes 90, Noes 25.

Part 2 does some minor tinkering with the election broadcasting provisions. Many New Zealanders will probably be a little contemptuous of us fiddling with this stuff at all, because it is a part of an election process that turns them off. We know that the television stations do not clamour to offer time for political debate, even though, typically, television is a place for debate and contention. The television people tell us that when election broadcasts run, their audiences drop away.

In this part, the Justice and Electoral Committee has fine-tuned some of the processes, on the assumption that a scrupulous appearance of fairness is actually consistent with free political speech. What the committee tried to do some time ago, and should have been doing with this legislation and did not, was look at the whole theory of control of election broadcasting.

This part regulates something that in most countries is regarded as elementary free speech. Few New Zealanders are aware that political parties in New Zealand cannot even pay for time on radio and television. Even within the spending limits—because many people are afraid of a massive spend-up; they fear that elections can be bought, despite the evidence from around the world that that is not very easy—we cannot choose to allocate the funds we are allowed to spend to television and radio. Yet television and radio are clearly where most of the public discourse that sticks in people’s memories takes place.

So we have an impoverished political debate. By depriving political parties and candidates of the right to speak through radio and television, in effect we confer a veto power on journalists. The editor of TVNZ, who makes the lead decisions on what the issues of an election are to be, has an authority and a weight that virtually no other Western democracy allows. In other countries, parties can fight it out. They can choose what the issue is and, by their advertising, force other parties to respond. New Zealanders have seen the effect of our system over 20 years. It is a system in which the majority of New Zealanders felt that no one in Parliament ever spoke up for them about the treaty. They saw an entire industry created by consensus between the two main parties that could not be challenged, because the media consensus was consistent with the consensus of the two main parties.

So we have in the Broadcasting Act—only tinkered with in this part—a regime for an absolutely derisory amount of time for political debate. The debate is governed and controlled by the people who decide whether there will be a “worm”. It is not genuine debate, because the journalists, in their news coverage, decide what the real issues will be.

The select committee laboured hard and came up with the recognition that it had done very little. Our most pathetic recommendation is: “We encourage the industry to work with the Electoral Commission to develop a code of practice.” What a cop-out! The ACT member—myself—dissented, because that is a deeply constitutional issue. Why should the Electoral Commission be developing a code that could prescribe even further constraints on free political speech at election time? The detailed existing prohibitions should have been abolished in this bill. There has been a very minor relaxation.

The two major parties, of course, benefit from the tightly limited time. In fact, even Labour and National, under the arrangements reflected in the bill, hardly get the amount of time to cover the issues facing the country that a supermarket would devote to selling a new dog roll. If we think of an advertising campaign of six or seven short and tightly constrained appearances that has to cover all the issues facing a country at an election, we can see how contemptuous this Parliament has been, and this legislation is, of freedom of political speech and the ability to argue the issues that worry the people.

I want to speak to my amendment to this part. I will refer firstly to the report back from the Justice and Electoral Committee, which states: “The United Future and ACT members consider that there should be a discretion given to the Electoral Commission to pay accounts after the 50-working day period.” We stated: “Circumstances could arise where accounts might not be received by the Electoral Commission through no fault of the broadcaster, political party or Electoral Commission. In that situation the current provision would result in the broadcaster being left out of pocket with no legal ability to recover their debt.”

I will give an example. We envisage that if we go to the full term, the election will be held next September. The 50-working-days rule means that accounts have to be in and paid by the middle of December, about a week before Christmas. I can imagine that the Māori Party, for example—which is likely to get $75,000 worth of funding, based on last term’s allocation—may decide to spend all its funding on Māori radio. It may wait for the invoices to come in, and they may trickle in in October, with perhaps an outstanding one that does not arrive till November. In that case, $75,000 worth of debt would be sat on. Then, because of Christmas looming and the busyness of that time, the person in the Māori Party who is responsible for sending the account to the Electoral Commission may overlook doing so until December, suddenly realise that time is short, and rush it off to the Electoral Commission, where the account arrives 1 day beyond the time. Under clause 18 of the bill, the Electoral Commission has absolutely no discretion to pay the account, and the broadcasters would be left out of pocket to the tune of $75,000, with no ability to recover it. Maybe an account is sent to the Electoral Commission and somehow gets lost in the post, and it is not the Māori Party’s fault that it is not paid. Whatever happens, we would be in a situation where, because this bill provides a straitjacket to the Electoral Commission with no flexibility whatsoever, we would have $75,000 worth of debt to several Māori radio stations that could not be recovered. That could be the death knell for those radio stations.

Fifty working days is a reasonable time—10 weeks, in fact—to get the accounts in. But in circumstances such as those I have described it may be that whether it is 5 working days or 100 working days, deficiencies mean that it simply does not happen, through no fault of the broadcaster, and yet the broadcaster is heavily penalised by being unable to recover the money. That could easily be remedied by the amendment I propose, which would give the Electoral Commission the ability to determine at its discretion that, given all the circumstances, the account ought to be paid. If the commission still had the money in its pocket—if it had not handed it back to the Crown—then it could make the payment, albeit that the account had arrived a day, or even a month, late. That discretion is, I think, a prudent thing for the Government and Parliament to grant, because at the end of the day the consequences of non-payment could be serious. The amendment really provides no harm to anybody, at all. It seems to me that when we give those sorts of authorities to Government organisations we ought to build in, whenever we can, some degree of flexibility and discretion to take account of exceptional circumstances, where something like the situation I have described may happen.

Why make 50 working days mandatory? Nobody has put up any reason why the Electoral Commission should be bound to a fixed date like that, and should have no discretion. There has really been no argument on that—and no argument from the Minister, except to say that the select committee had decided that that should not happen, so therefore he would go along with it. In the select committee we did not consider that issue for any length of time. Those who did support the clause simply felt that 50 working days was all that we needed to give. But I think this is bad law as it stands. Although the simple amendment to give discretion costs nobody anything, it may save the Government a huge amount of money and embarrassment if a broadcaster were to go under simply because the Government had ignored this modest request. I commend the amendment to the Minister and encourage him to look again at the possibility of putting it into the legislation, because I think it is a very a small change and would really do no harm.

I do want to correct a comment that I made in my speech at the second reading stage, when I said that New Zealand First only wanted itself, National, and Labour to be represented on the committee. I acknowledge that it wanted itself, Labour, and National to be represented, and one representative of all the other parties. I do not think that improves the situation much, but I do want to set the record right in so far as I did misrepresent New Zealand First’s position. Obviously, if New Zealand First can get that while it is the third-biggest party, that would be wonderful for it.

There are two or three particular areas that I would like to draw to the Minister’s attention and seek his comments on. The first relates to clause 26, inserting new section 80A, “Duty to report suspected offences”. The reason why I raise it with the Minister is that I seek his comment on whether there should be some element of discretion for the Electoral Commission not to refer minor breaches of the Broadcasting Act to the police. Members who have been in the House for any length of time will recall the debacle we had in 1996 when, I think, a quarter of the members of Parliament who were elected had their spending returns referred to the police. Their spending returns were referred to the police because of a myriad of minor technical details.

For example, I am aware that a number of returns were referred to the police by the electoral office because members had failed to put on their returns the street number of a company that they had paid an election expense to, and a number of spending returns were referred to the police because members had failed to identify correctly the address or the name of the person to whom an election payment was made. As I recall the situation, I think every party in the Parliament had members’ spending returns referred to the police. Now, that was patently ridiculous, because the electoral office did not seek that information from the members involved, but the members had to put up with having their returns referred to the police and the uncertainty that was attached to that. Thank goodness the police exercised their discretion, and decided that that was a complete and utter nonsense and a waste of police time. So I would like the Minister to consider whether there is an option for the Electoral Commission to either have opportunities for people to remedy any potential breaches or have some discretion in respect of minor breaches. New section 80A, “Duty to report suspected offences”, inserted by clause 26, does mean that if United Future, as it did last time, fails to put its spending return in on time, but puts it in the next day, or if United Future fails to state the address of a person to whom it paid a cheque, then that return technically has to be referred to the police. Indeed, that happened in 1996 and again in 1999.

A second point I would like the Minister to comment on is why we are continuing with the charade of opening and closing addresses. I wonder why he is not prepared to entertain the idea of allowing parties the choice of whether to spend their resources on producing opening and closing addresses. Frankly, there is such a plethora of media now that very few people tune into the opening and closing addresses. Some of them are pretty awful, and they do not maintain the public’s interest. I suspect if we were to pick up on the point that Mr Franks raised about the opportunity for parties to successfully put their message to the voters, we would realise the resources being spent on producing opening and closing addresses, and the free time that is contributed to them, would be much better spent elsewhere. So why can parties not have the choice of how that taxpayer resource is spent?

I wonder whether the Minister can also comment on why we are continuing with the prohibition on paid election programmes in section 70(2)(c)(ii) of the principal Act, which is amended by clause 13. Essentially, that is a restriction on the ability of individual candidates to promote their election outside the election period. What that means is that candidates who have been selected by the National Party—such as Gil Stehbens, who is going to be the next National MP in Rotorua, or David Bennett, the next National MP in Hamilton East, do not have an opportunity to advertise their candidacy and their availability on the radio, but sitting members of Parliament do. Sitting members of Parliament are able to advertise their candidacy under the cloak of their constituency services. I have been in parts of the country where electorate MPs advertise their availability on the radio, which in my view skirts around the restrictions on the ability of individual candidates to promote themselves.

New Zealand First supports this part of the legislation. About the only real issue is the one that has been raised by Murray Smith, the United Future member. I understand the ACT party is likely to support that amendment if it is consistent with the report, and I expect it would be.

I have had the opportunity to listen to the debate on this issue. I was not at the Justice and Electoral Committee at the time; a member deputised for me while I was dealing with another piece of legislation. I am going to support the United Future amendment. I think it just adds that extra degree of safety. It is perhaps unfortunate that the member mentioned the particular party in question; it could happen to anybody. From the point of view of extra caution, New Zealand First will support that amendment. There is really nothing else to say. It is largely a non-controversial measure, and I do not intend to take up the time of the Committee any further.

I want to make some remarks about election broadcasting and, in particular, I will follow on from the comments made by my colleague Tony Ryall in respect of choice around opening and closing addresses and the funding required for those addresses to be made freely.

I note in the commentary on the bill that the Justice and Electoral Committee had a job of trying to balance freedoms around the election broadcasting expectation while, at the same time, not wanting to prescribe too heavily on the political parties the exact measures. I listened with interest when Stephen Franks from the ACT party made the comment that other political elections enjoy much more freedom around the edges of these types of funding arrangements, but, of course, are restricted in many ways by constraints that they impose upon themselves.

If one looks at the US election recently held, and, in particular, at the plethora of rules and regulations that was laid down when Senator John Kerry was to meet President Bush on the platform during the presidential debates, we can see that there were rules covering such things as how far apart the podiums would be, whether there would be one podium or two lecterns, who would speak first, whether the candidates would sit or stand, what arrangements would be made about which topics would be debated at which debate, that the first debate was on foreign policy and the second was on the economy and domestic policy, and that they were not allowed to have an environment where those subjects overlapped in those two debates. Further concerns were expressed between the parties over things such as the number of questions that would be asked, who would ask those questions—would members of the audience ask them—and whether each candidate would be able to chip in while the other candidate was speaking. Those sorts of rules were very tightly prescribed. It made the leader’s debate with Paul Holmes look like a bit of a walk in the park.

But I have to say that for us then to form the view that other jurisdictions have much more freedom around the way they conduct these broadcast debates or political statements, is not actually that accurate, although, to be fair, in respect of those two presidential candidates I have to say that that was done by way of negotiation between the two parties, as opposed to a set of rules that was set down. I think that the most intriguing thing, though, was that when all those rules had been set down, when all the arrangements had been made, and when the gofers had finished negotiating, on behalf of the candidates, for months on end, both candidates walked out wearing white shirts and red ties! I thought that was quite interesting—completely immaterial to this bill but interesting none the less.

In respect of the opening and closing debates broadcast during the election period in New Zealand, new section 71, in clause 17, attempts to blend choice with prescription, and, as is so often the case, it would seem to me that what some political parties would wish for is far more choice and far less prescription on this particular issue. In the end, the political parties themselves are best placed to determine what particular market, what particular sector, and, indeed, what particular medium will appeal to their voters. It should not be left to the State to make those decisions completely on their behalf. In fact, when one thinks through the logic of every party having to spend money on an opening statement and a closing statement, it all seems a bit odd. Who could forget, at the last election, Winston Peters sitting behind his desk looking, in his own mind, one imagines, seriously presidential, and then holding up three fingers to recite a child’s nursery rhyme. Only if he had been forced to have an opening statement would he have restricted himself to such a series of bizarre approaches. Having said that, I am sure the Rt Hon Winston Peters would have preferred the freedom to choose his own medium, his own setting, and his own time frame in which to make his opening statement in his own way. Whilst the select committee has tried hard to blend prescription with freedom, we still are not left with a huge amount of choice.

I want to talk about the opening and closing addresses, which are in Part 2. In doing so, I begin by commending Television One and Radio New Zealand for voluntarily giving time to the opening and closing addresses. It is time that they give up and are not reimbursed for, and I want to thank them for their willingness over the years to do that.

The opening and closing addresses do play an important role. The election should really be a level playing field. At the time that the House rises and heads towards an election, every party is at zero seats and approaches the election from the point of view of having to win representation from that point. But so much of our system is geared against that level playing field. In particular, the funding that is provided for television and radio broadcasts is paid out on a proportionate basis—the larger the party, the more money it gets and the more time it gets. To some extent, that clearly goes against the idea that all parties approach an election on the same basis. There is some justification for it in terms of the allocation of finances from the public purse; arguably, the distribution of public funding of election broadcasting on the basis of the public support for parties that has been shown in the past can be justified. But when smaller parties are unable to top up their funding by private funding to supplement that, to bring them to a level playing field, in my view it provides some distortion.

I think the opening and closing addresses, in contrast, help to level the playing field. Although there is more time allocated, at least all the significant parties get an opportunity to provide their opening and closing addresses at a time when the members of the public who are interested in the election and in political events may make up their minds. We know the power that there is in television broadcasting in particular. The ability to judge all parties over one or two nights on their opening addresses, and over what has proved to be about a 30-minute period on their closing addresses, does, I think, have quite an influence on helping people to make up their minds as to which party they will support.

I think that, in so far as we get the generous time of Television One and Radio New Zealand, it was important when we were considering this bill to provide as much flexibility to them as we could, and, in particular, to allow them advertising time in between the opening and closing addresses. The sacrifice they have made in the past, in that they were prevented from obtaining advertising revenue during a time when they would normally expect it, has been an extra penalty that they have paid. The Justice and Electoral Committee recognised that it was a penalty that ought not to be imposed on them, and that it was not necessary for it to be imposed on them.

I think it is appropriate that the restriction on election advertising stays, because of the potential for parties to distort the opening and closing addresses period by using greater resources. Therefore I think it is wise to restrict that. However, the select committee has left the discretion on the broadcaster, in terms of judging to a large extent whether advertising in the grey area constitutes election advertising. But I think we can have confidence in the broadcasters that they will take a conservative approach to that. If they get advertising from a third party that looks as if it is a little close to promoting a particular party, or suggesting that people not vote for a party, I am sure they will take a conservative view and not allow that to happen.

I think the changes we have made not only fix an ambiguity in the Act as far as advertising is concerned but provide a very good balance whereby the broadcaster is able to get paid for time but there is the limitation to ensure that there is not any distortion through advertising between the opening and closing addresses. Certainly, I think one of the things that the Government needs to look at is this whole idea of the ability to top up funding. I also think that the process we should be adopting is that once public funding is allocated, parties that get less than the largest party are able to use their own resources in order to top up funding, because of the level playing field nature of our elections.

It is a pleasure to be speaking on behalf of National on Part 2. I will start by saying, if I may, that issues touching on electoral legislation need to be treated with considerable care. New Zealand does not have a written constitution, and in the developed world we are one of only three countries that do not have one. The other two happen to be the United Kingdom and Israel.

I know that in the course of this debate National members have been looking with interest at Mr Murray Smith’s contribution in the form of the amendment that he has proposed—very late in the piece, I would have to say—to clause 18. The whole issue of electoral broadcasting is, of course, a hot topic, and the Justice and Electoral Committee was concerned not to leave room open for undue influence upon the perception of opening and closing broadcasts, from both the placement or the content of advertising, that might have political impact. I believe that the balance that the select committee has struck is probably reasonable in the circumstances. There is no doubt that the current position on advertising between opening and closing addresses is, at the lowest, ambiguous—it is certainly that. One of the things that the select committee did was to insert, in clause 22, a new section 77A into the Broadcasting Act.

It might be said that the public is not much interested in these things; it might also be said that there is no compelling reason for change. But certainly in the context of the developing dynamic of MMP, it becomes increasingly important for the system at least to appear to be fair—even if it is not completely so. That is why those changes have been made.

One of the things we did suggest was that industry work with the Electoral Commission to develop a code of practice. I am not sure whether the ACT member has taken a call in this debate, but he is a very substantial contributor to the work of the Justice and Electoral Committee, and he dissented from the position of the majority in connection with the broadcasting issues. I hope he is given an opportunity to talk about those sorts of issues. As a bottom-line position, we need to be careful not to constrain or limit free media speech.

I think the Committee, certainly from National’s perspective, will have to think more deeply about Mr Smith’s proposals. I just say, I suppose by way of friendly caution to him, that when, in the Committee stage of a bill, proposed amendments arrive very late, there is no real opportunity for caucuses to reflect on what their significance may be. Even if they are of undoubted intrinsic merit, there is no real opportunity for them generally to be taken up, because of the need to align them with other provisions in the bill.

I have spoken about electoral hoardings in the debate on another part of the bill, and I do not seek to do that now. In simple terms, National’s position is that it supports this bill.

💬 Hon Rick Barker: You are confused.

I will respond to an invitation that has just now been offered to me by the Minister in the chair. He has made the suggestion that National is confused on these issues. I would just like to say to those who are listening to the radio, and also to members in the Chamber, that “confused” is something National never is.

I move, That the question be now put.