The Alliance Party v The Electoral Commission and Ors

JurisdictionNew Zealand
CourtCourt of Appeal
JudgeHammond J
Judgment Date10 Feb 2010
Neutral Citation[2010] NZCA 4
Docket NumberCA639/2008

[2010] NZCA 4

IN THE COURT OF APPEAL OF NEW ZEALAND

Court:

William Young P, Hammond and Chambers JJ

CA639/2008

BETWEEN
The Alliance Party
Appellant
and
The Electoral Commission
First Respondent

and

The New Zealand National Party
Second Respondent

and

The Family Party
Third Respondent
Counsel:

A J McKenzie and D Goldwater for Appellant

P J Gunn and D Brookes for First Respondent

P T Kiely and D J Erickson for Second Respondent

Appeal brought by The Alliance Party (“Alliance”) against a High Court decision that held that the Electoral Commission's non–allocation of time for a closing address to the Alliance Party on either radio or television was lawful — whether requirement under the Broadcasting to Act to allocate time for an opening and closing address was mandatory — whether Alliance allocated advertising funds on the wrong basis

Held: The wording of the Commission's explanation that the “minimum amount allocated reflects the cost of a basic radio advertising campaign for a month” was an unfortunate choice of words, however it didn't preclude the fact that the Commission may have turned its mind to the cost of a television campaign. Since the basic radio advertising campaign was the basis of the decision, the allocation of money to non–Parliamentary parties was in error. The Court refused to make the declaration sought by Alliance that every registered party should receive a minimum amount of money under s74A BA and that such a minimum must be sufficient to provide every party a fair opportunity to convey its policies because the Court determined it should not intrude any more than necessary in the election of Members of Parliament. The Court made a declaration that Part 6 BA required the Commission to allocate time for an opening and closing address to every political party that qualified for an allocation of time under the BA. Appeal allowed.

JUDGMENT OF THE COURT
  • A The appeal is allowed.

  • B We make a declaration that Part 6 of the Broadcasting Act 1989 requires the Electoral Commission to allocate time for an opening address and time for a closing address to every political party that qualifies for allocation of time under the Broadcasting Act.

  • C We make no order for costs.

REASONS OF THE COURT

(Given by Hammond J)

Table of Contents

Para No

Introduction: a political party is dissatisfied

[1]

The New Zealand electoral broadcasting system

Evolution

[9]

Political parties

[13]

The form of broadcasting access by political parties

[15]

Dividing up the pool

[20]

The application of the Broadcasting Act scheme

[23]

The Commission's allocation decision

[24]

The closing decision

[27]

The High Court decision

[30]

Discussion

[31]

The advertising decision

[36]

The High Court decision

[39]

Discussion

[41]

Conclusion

[44]

Introduction: a political party is dissatisfied
1

In the run up to the 2008 general election for the New Zealand Parliament, the Electoral Commission (the Commission) was required to make an allocation of broadcasting time for opening and closing addresses on television and radio by qualifying political parties. The Commission was also responsible for allocating government funds for the broadcasting of election programmes by political parties. The Commission had available 72 minutes of time on Television New Zealand Limited (TVNZ) and Radio New Zealand (RNZ) for opening addresses by the parties and 30 minutes of time for closing addresses, as well as $3,211,875 of public money. The appellant, the Alliance Party, received one minute of time for an opening address, a $10,000 allocation from the amount appropriated for broadcasting election advertising, and a production package of $7,000. The Party did not receive any time for a closing address.

2

The Alliance Party claims that the Commission acted unlawfully in this respect. We should make it plain at the outset that there is no allegation or aspersion that the Commission acted in bad faith. It is accepted that, faced with limited funding, the Commission did its level best to arrive at a solution which it saw to be “fair”. The claim is therefore a strictly “legal” one, concerning the interpretation of Part 6 of the Broadcasting Act 1989.

3

We should add that the outcome of this proceeding casts no doubt on the standing and lawfulness of the 2008 general election in this country. The Alliance Party wishes to establish – with future general elections in mind – that by law it should have been allocated funds for a closing address.

4

In the High Court, MacKenzie J held that the Commission's nil allocation of time for a closing address to the Alliance Party on either radio or television was lawful. 1 That proceeding was brought by way of judicial review, and the application was dismissed.

5

In this Court, the Alliance Party originally wished to challenge the following aspects of the Commission's allocation decision: the decision not to allocate broadcasting time for closing addresses to non-Parliamentary parties (the closing decision); the approach to calculating the allocation of public money for broadcasting costs to non-Parliamentary parties (the advertising decision); and the tying of part of the monetary allocation to a TVNZ production package (the production decision). The appeal in relation to the production decision was abandoned by counsel for the Alliance Party on 7 October 2009.

6

The agreed issues on appeal are now as follows:

  • (a) Does Part 6 of the Broadcasting Act require the Commission to allocate time for an opening address and time for a closing address to every political party that qualifies for allocation of time under the Broadcasting Act?

  • (b) Whether, in allocating money to the Alliance Party in 2008, the Commission based its decision on the costs of a basic radio

    advertising campaign for a month? If so, was that decision in breach of s 75(2) of the Broadcasting Act?
7

The Alliance Party seeks declarations that:

  • (a) Every registered political party must be allocated a closing address of such length as the Commission determines; and

  • (b) Every registered political party must be allocated a minimum amount of money under's 74A of the Broadcasting Act. That minimum amount must be sufficient to provide the political party a “fair opportunity … to convey its policies to the public by the broadcasting of election programmes on television”: s 75(2)(f).

8

We will proceed to consider the issues arising under three principal heads. First, we will set out the relevant electoral broadcasting regime in New Zealand, highlighting the way it works. Secondly, we will set out what the Commission actually did in the case under review. Thirdly, we will turn to the legality of the closing and advertising decisions.

The New Zealand electoral broadcasting system
Evolution
9

For present purposes, “broadcast media” refers to television and radio channels. In New Zealand resort to the broadcast media for election related purposes has always been heavily regulated. For a general description of the New Zealand system, see Andrew Geddis Electoral Law in New Zealand: Practice and Policy. 2

10

Because broadcasting in New Zealand began life as a “quasi-nationalised public service”, there was some unease as to the potential for governmental interference with the media for partisan political ends. 3 In large part that explains why New Zealand has such heavily regulated electoral broadcasting laws.

11

However, broadcasting in New Zealand is now almost wholly commercial and privately owned. If there is a purpose for close control of electoral broadcasting in New Zealand today, it must be grounded on a democratic principle of fairness of access. This is particularly important in an age when the broadcast media are so influential in conveying election messages to the voting public.

12

Ensuring fairness of access has been and continues to be a hotly debated topic. The actual determinations of the Commission in the regulation of election-related broadcasting have routinely produced debate. At every general election there have been complaints of unfair treatment by at least some of the affected parties. 4 In short, the case which is before us concerns one aspect of a problem which has much exercised political parties generally.

Political parties
13

Legal recognition and regulation of New Zealand political parties is a comparatively recent phenomenon. 5 Under New Zealand's current electoral regime, a political party cannot contest what many commentators consider to be the all important party vote unless and until it is registered. Access to broadcast media electioneering is forbidden, save in the case of registered political parties.

14

To be eligible to register, a party must demonstrate to the satisfaction of the Commission that it has at least 500 “current financial members” who are eligible to enrol as electors. 6

The form of broadcasting access by political parties
15

We are conscious that a judgment of this character may attract the interest of general readers. Thus we express what the Commission has to do in making an

allocation in plain English rather than in the technical language of the Broadcasting Act.
16

Part 6 of the Broadcasting Act requires the Commission to allocate time and money to political parties contesting a general election. The broadcasting of election programmes outside those allocation parameters is prohibited. 7 Accordingly, Part 6 is the only recourse political parties can have to the broadcast media for elections.

17

The way the Broadcasting Act scheme works is as follows. First, the two publicly owned broadcasters, TVNZ and RNZ, must provide time free of charge for the broadcasting of the opening addresses and closing addresses of political parties in an election period. 8 The Commission must require TVNZ and RNZ to...

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