The Alliance Party v The Electoral Commission and Ors

• Jurisdiction: New Zealand
• Judge: Hammond J
• Judgment Date: 10 February 2010
• Neutral Citation: [2010] NZCA 4
• Docket Number: CA639/2008
• Court: Court of Appeal
• Date: 10 February 2010

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

[2010] NZCA 4

Court:

William Young P, Hammond and Chambers JJ

CA639/2008

IN THE COURT OF APPEAL OF NEW ZEALAND

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

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

• 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.

JUDGMENT OF THE COURT

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 supply a statement of the amount of time that each of them will provide for this purpose. 9 Secondly, a sum of public money is made available in respect of the costs of broadcasting election programmes. 10 For the 2008 election the amount contributed by the government was $2,855,000 excluding GST, or $3,211,875 including GST.

18 Part 6 significantly constrains the ability of political parties to communicate their messages directly to voters. Failure to abide by the regulatory constraints in Part 6 gives rise to offences under the Broadcasting Act: for instance, it is an offence, punishable by a fine of up to $100,000, for any person to broadcast an election programme for or on behalf of a political party in an election period. 11

19 The important point for the purposes of this judgment is that there is a distinct constraint upon activities that could otherwise be undertaken by political parties in relation to the general election, the most important exercise in a democracy. This is an...