23 March 2005

Helena Catt
Electoral Commission
Level 6
Greenock House
The Terrace
WELLINGTON

Dear Ms Catt

I regret I was unable to attend the hearing with the ACT party on Tuesday 22nd March 2005.  I got within 30,000 feet but unfortunately my plane was unable to land. As a result I was not able to present these submissions.

I believe the Commissions letter dated 15 March 2005, the third paragraph, second point, "How to interpret the last criteria, the need to provide a fair opportunity for each political party … to convey its policies to the public by the broadcasting of election programmes on television", has identified the crucial section of the Broadcasting Act against which all other criteria must be measured.

Parliament added this section to the criteria. It is clearly meant to modify the other criteria. The Commission must give effect to the section.

What does it mean? 'Fair' is defined in the Oxford Concise dictionary (9th edition), (all definitions are from the Oxford 9th edition), as 'just, unbiased, equitable'. What do those words mean in the context of an election broadcast?  It means that all candidates and parties are treated the same. It can have no other meaning. Right through the Electoral Act the principle is that each voter has the same vote, each candidate the same opportunity, eg the same spending limit, and each party the same rights and expenditure limits. A country that favours some candidates above others, some parties above others is understood not to be conducting 'fair' elections.

• 'Opportunity' is defined as 'a good chance'. Anything less than equal is not a good chance.
• 'Each political party' means 'every political party'. 
• 'To convey': The definition is to 'communicate (an idea, meaning, etc)'. 
• 'Its policies': The definition is 'a course or principle of action or proposal by a government or party'.
• 'To the public' is defined as 'concerning the people as a whole'.
• 'Programme': The definition is 'a radio or television broadcast'.

So the section means every political party is to have the same chance to communicate by radio and television to all the people its principles and proposals.

The criterion in section 75 (2) (f) is that the Commission must give equal time to every party.

This criterion in section 75 (2) (f) must be read in light of section 75 (1) of the Broadcasting Act.

It is reasonable to interpret section 75 (1) as a prohibition on granting taxpayers money to political parties that either are parties in name only, have no policies, or do not have an organisation or enough candidates to justify receiving taxpayers money. It is a measure to ensure fiscal prudence. This is a mandatory section.

The public policy is to ensure that taxpayer money is not wasted on a political party that is not really contesting the election. The test is very low, just 10 candidates. Clearly ACT and most of the parties giving evidence qualify under section 75 (1).

Section 75 (2) is very different. The Commission is only to have regard to the criteria. 

The proper way to interpret 75 (2) (a) to (e) is that it is also fiscal prudence. Even if a party has met the test of 75 (1) if, (a) virtually no one voted for a party in the last election and (b) in a by-election and (c) a party has no MPs or very few and (d) it is not an independent party ie it is double dipping and (e) a party has no public opinion poll support and few members, then the Commission may decide not to grant equal funding to such a party.

All these sub-sections are to be read together as each sub-section is joined by an "and". Further more the sub-sections must be read in light of section 75 (f).
 
Nowhere does the law say the Commission must give unequal funding. With 75 (f) indicating an equal opportunity for every party there would need to be very strong wording in the Act to justify the Commission handicapping the parties by giving an unfair opportunity to some parties compared to other parties.

Other sections in the Broadcasting Act make it clear that parties are to be treated equally. For example, "Section 79 (b) (1) Obligation to give identical terms to each political party or candidate."

I realise the two old parties' representatives have argued that equality just means between National and Labour. The law does not say that. However they and the Commission were right to give the two parties equal funding in light of  section 75 (2) (f). The mistake was not extending the equality of opportunity for broadcasting to all other parties that qualify under 75 (1) and do not fail to met all of the criteria in section 75 (2) (a) to (e).

If failing to meet any of the criteria in the subsections of section 75 (2) enabled the Commission to scale back a party from equality, then as only the Maori party contested the by election, only that party meets the criterion of the sub section. The Commission can not pick and choice what criteria to apply.

The Commission should favour the straightforward interpretation of the law otherwise it is meddling in the election. The Commission should assume that parliament meant to have a fair election with every party having an equal opportunity to win. All the criteria in section 75 except section 75 (f) are provisions to ensure that taxpayers' money is not to be spent on political parties that have no policies, organisation, candidates or any electoral support. It does not mean parties that have little chance of electing an MP are excluded from an equal opportunity. The principle of democracy is alternative views are heard and parties that fail this election may be tomorrow's majority. It is important that they are all given a fair opportunity and the Commission's job is not to second-guess the electorate.

Unless the Commission has doubts that a party can run a campaign, be able to met the requirements to account for public money and the party received virtually no votes last election, and has no or just one MP (i.e. the Alamein Kopu scenario) and no public opinion polling support and not enough party members to be able to run a national campaign, then and only then can that party receive unequal funding. It's a high test, as the party has to fail all the criteria.  On a plain reading of the law, if a party meets section 75 (1) and does not fail to meet all the criteria in section 75 (2) then the party is entitled to the same chance as every other party ie equal funding.

All ACT asks for is its legal entitlement to the same opportunity as each other political party that like ACT meets the criteria for funding.

The wording of the Act does not ask the Commission to scale parties on the criteria in section 75 (2). Such an exercise would be very subjective and unfair. The Greens for example have always scored higher in public opinion polls than they do in elections. Labour claims trade unionists as members when the individual concerned may not know they have been joined and may be a National party member! A party can receive many votes at the last election and almost none in the next and vice versa. There are many examples.

The only objective way to give meaning to section 75 as a whole is that all parties that meet the criteria in section 75 (1) are to have an equal opportunity unless the party fails to meet all the criteria in section 75 (2) in which case the Commission may grant a scaled proportion. Section 75 (2) (f) creates a presumption that funding will be equal.

There is further evidence that equality is the criteria for funding and that is the ban on parties purchasing broadcasting time. This ban is only fair if the principle is that no party is to have an advantage over another and all parties are to have the same opportunity to communicate by broadcast.

Any other interpretation is that the Commission is being asked to rig the election. Honourable people would not agree to such an action.

There is a honourable, simple way of allocating the time and money and it is the clear intention of the criteria you are to interpret. Equal time for all parties that meet the minimum criteria for funding. 

I apologise again that the weather prevented me from attending in person and I hope this will not prevent the Commission from considering the points I would have made in person.  

Yours sincerely

Hon Richard Prebble CBE
ACT New Zealand

11 March 2005

Dr Helena Catt
Chief Executive
Electoral Commission
P O Box 3050
WELLINGTON

Election Broadcasting - Submission By Act New Zealand

ACT New Zealand makes the following submission on the allocation of time and money for broadcasting of election programmes as it relates to the general election to be held this year.  Despite ACT's deeply held belief that the system of allocation is in itself inherently flawed and contrary to democratic principles, we make submission on the basis that the Electoral Commission should be a facilitator of these principles in their regard for the factors governing allocation specified in the Broadcasting Act 1989.

ACT representatives will appear in person to discuss their submission with the Commission.

Determination of Criteria for Consideration

With relation to their task, the Commission is therefore in a position to consider their obligations under the Bill of Rights Act, common law principles of freedom of speech, and the facilitation of democracy through its decisions.  The impartiality of the Commission, while assuredly genuine in its intent, is not served by a conservative reading of the legislation whereby the two most media publicized parties are allocated the majority of available broadcasting time, while less publicized parties, forbidden to buy time with their own private resources themselves, are denied the opportunity to redress the balance.

The Case for Equal Distribution of the Electronic Advertising Allocation

There is no reason for the 2 old parties - Labour and National to get the majority of advertising time in the electronic media.  The governing party already gains an unfair advantage by having the ability for the State to pay for advertising its policies.  Once example of this is $18 million budget for the Working Families tax package.

 At the last election Labour got 41% of the vote and National 21% of the party vote.  At each of the MMP elections ACT has not got its fair allocation of resources.  How many elections will there have to be for the Electoral Commission to recognise our Party's under funding, if it deems that 'fairness' is the key criteria in deciding allocation of resources.

There is growing anecdotal evidence that the Electoral Commission is committed to preserving the status of the 2 old parties when they polled only 63% between them at the last election.  We confidently predict this elections allocation will be monstrously wrong again.  d.  If there is only to be taxpayer funding for electronic advertising, then all parties should be equally funded.

TV Advertising

The actual way TV advertising is allocated and distributed is a disgrace and is clearly biased against the newer parties.

By way of history, in 1995 the National government supported by the Labour Opposition abolished the ability of political parties to use their own money to buy electronic advertising on TV or radio.  In a so-called democracy it is against the law for a political party to buy a thirty second advertisement on TV or radio between elections yet the government party can use taxpayer resources to a massive extent to promote its policies. Furthermore both TVNZ and TV3 overcharge and make the parties pay the 'schedule charges'.  Very few other organisations have to do this.

The Commission's Mandate

ACT believes that the effect of the prohibition on paid election programmes should be a factor of consideration in the Commission's decisions.  If the Commission's allocations are made in the absence of any purchase of radio and television time, then the Commission has a duty to examine the purpose of this substitution, and the resulting difference in outcome of broadcasting time which it is thus obliged to contribute.

It is redundant, then for the Commission to continue to allocate a majority of resources to the two most popular parties of the day when those parties would be perfectly capable of purchasing an equivalent amount of broadcasting time were such purchases legal.  ACT submits that if the Commission intends, through its interpretation of the law, to apportion resources in a manner, which would roughly mirror the outcome in a free market, then the Commission should be proactive in recommending the legislation of broadcasting purchases by political parties to legitimate its decisions.  The Commission should not become part of the problem.  The Commission should recognise that it has a moral obligation to recommend changes to law.

It is still ACT's belief, however, that the purpose of controlling election broadcasting through intervening legislation is one of equalization of parties' opportunities.  The criteria specified in section 75(2) of the Broadcasting Act 1989 must therefore be seen as making a contribution towards the end, rather than away from it.

Furthermore ACT submits that the Electoral Commission, in making allocations, must take into consideration the public policy imperative that for New Zealand to be a free country, New Zealand's elections must be fair.  The Electoral Act 1993 contains a number of measures which make it clear that all candidates and parties are to be treated equally.  The size of deposits and limits on campaign expenditure are identical for all parties and candidates.  All rules are the same for all parties and candidates.

The Commission therefore has a perfectly reasonable mandate to equalize its time and money allocations for all parties in the intended spirit of the legislation under which it makes those allocations.  Clearly the spirit of the legislation has never been met in previous MMP elections.

Criteria Specified in Legislation - Section 75(2)

With this in mind, ACT subscribes to the democratic principle that all registered political parties conducting a nationwide campaign should receive the same amount of time and money.  While the Commission may feel that Section 75(2) obliges them to make some differentiation between levels of allocation, the creation of five different levels of funding with exorbitant disparities between categories is clearly unacceptable in light of what we have submitted thus far.

Assuming that the Commission will continue to interpret the law in this manner, however, ACT suggests that no more than two categories of allocation should be put forward for the 2002 allocation, as follows:

Category One:  All parties which are able, through their pre-eminence in the criteria specified in sections 85(2)(a), (c) and (e), to suggest a level of support sufficient to make representation in the next parliament a serious possibility;

Category Two: All other registered parties, being allocated resources according to section 75(2)(f) of the legislation.

Parties should receive no more or less than any other party within their category.  The two differing categories would satisfy the perceived need to differentiate between parties, satisfy a leaning in the direction of party equality for which ACT contends, and partially satisfy the need for accountability to taxpayers in spending money on parties which have levels of support of at least some significance.

ACT makes the following points to assist the Commission in allocating time under section 73 of the Act and in making an allocation of money under section 74A of the Act.

1. Votes at the last election
   ACT New Zealand contested the 2002 General Election and achieved 145,000 party votes, representing 7% of all votes cast.  ACT has passed the 5% threshold and increased its vote at every election it has contested.  It expects to do so again.
    
2. Votes at the last by-election
   There have been no by-elections held since the 1999 General Election.  However, ACT drew within one thousand votes of winning the King Country by-election.
    
3. Number of Members of Parliament
   Nine Members of Parliament represent ACT New Zealand in the current Parliament.
    
4. Political Party Relationships
   No relationships exist between ACT New Zealand and any other political party.
    
5. Indications of Public Support
   (1) Opinion Polls
   ACT's polling in between elections tends not to reflect its share of the vote in the two General Elections and one by-election it has contested to date.  This demonstrates not only the appeal of ACTs policies when given the chance to advocate them in a campaign, but also the weakness in relying on ACT's polling percentages as a measure of ACT's true support in the wider electorate.  It is very clear that during the election campaign proper a totally different polling pattern emerges that ends with the results at the general election.
    
   The commission should be aware that while ACT's own polling, which we believe to be superior, is able to detail our support to a much greater extent, the absolute impracticality of revealing our private polling to representatives of both Labour and National parties on the Commission should be obvious.  ACT asks that the Commission take this into account to minimise this disadvantage inherent in the process.
    
   (2) Party Support Base:
   ACT New Zealand as at the date of making this submission has in excess of 40,000 people who have requested to be enrolled as Members, supporters or mailing list recipients of the party.  The Letter has over 26,000 subscribers, which makes it the largest email letter in New Zealand and larger than the subscription base of the National Business Review, the Independent and most provincial newspapers and other political parties.  ACT and its MPs are in regular contact with over 80,000 addresses.  Again, we are unable to disclose exact figures to representatives of Labour and National and ask that this be taken into account.
    
6. Fair Opportunity for Parties to Publicise Their Policies
   Having proved itself to be ranked amongst the top four parties in all other specified criteria and displaying an excellent chance of retaining representation in the House of Representatives, ACT contends that fairness is best served by an allocation of resources equal to those of other parties within this category.  ACT further contends, based on what we have submitted here, that no fairness can be achieved by the Commission in allocation ACT a lesser amount of resources than any other party.
    
   The Commission needs to be realistic about what is "fair opportunity… to convey policies to the public."  Our media advisors inform us that the amount of "tarps" allocated to the third parties is not sufficient to get our message across.  State funding should not amount to two parties rigging the election at the expense of all others.

Summary

ACT New Zealand is an organised political party, which operates actively between elections and has demonstrated both its stability and appeal through returning at least 9 members of Parliament in both of the last two general elections.  The party counts among its leaders, candidates and members a wide array of experienced politicians, former Cabinet Ministers and experienced party workers as well as also drawing into the party a significant group of people previously not involved in politics.  ACT presents policies, which are not only in the mainstream with significant support amongst voters, but also offer a serious alternative to the other main parties.  As such ACT New Zealand seeks that the Electoral Commission determine allocations of electoral broadcasting time and money sufficient for ACT to contest the forthcoming General Election on an equal footing with all other major parties.

Other Matters

We comment on those as follows:

(i) Broadcasters Proposals and Conditions
The lack of free airtime offered to the Commission's invitation is to be expected.  What rates, free airtime offered to the Commission create an imbalance in the way parties conduct their campaign.  Parties need an equal opportunity to target demographics where their potential support is strongest and ACT submits that the Commission should in its allocation decisions, recognise which parties are most likely to benefit from the negotiated prices.

Consequently, ACT submits that subsequent to the money allocation being made, all parties should be able to either accept the Commission's negotiations, or negotiate their own arrangements with the media.

(ii) Conditions Concerning the Expenditure of Allocated Money
ACTs main concern is that the Commission should exercise as little interference in party expenditure as is legally possible, subject to its mandate.  To this end, ACT submits that the bulk allocation of money, rather than a division into sums for television, radio, and production costs should continue.

Solemn Declaration

I ___________________ Party Secretary of ACT New Zealand, hereby solemnly and sincerely declare that all of the facts and information contained in the foregoing submission are true and correct in all respects.

And I make this solemn declaration conscientiously believing the same to be true and by virtue of the Oaths and Declarations Act 1958.

Barbara Astill

Solemnly and sincerely declared by Barbara Astill this ___________________.