There are detailed rules in the Electoral Act 1993 and the Broadcasting Act 1989 on what candidates can and cannot do when campaigning.
The key messages are:
|Key Messages for Campaigning in By-elections|
|Election advertisements published at any time, in any medium, must contain a promoter statement.|
|Special rules apply for broadcasting election programmes on radio and television. Election programmes can only be broadcast on radio and television from writ day to the day before the election.|
|Other people cannot promote a candidate at any time without the candidate's written authorisation.|
|A non-broadcast election advertisement can be published at any time except on election day.|
|Campaigning on election day is a criminal offence.|
This part of the handbook explains these rules in more detail.
Part 5 explains a candidate’s obligations concerning election expenses and donations.
Part 6 outlines the restrictions on election day.
4.2 All election advertising must contain a promoter statement
All election advertisements irrespective of when they are published must state the name and address of the person that has initiated or instigated it (‘the promoter’). [See section 204F of the Electoral Act].
To meet the requirements of the Electoral Act, promoter statements must include the name and address of the promoter in a way that makes it expressly clear who has initiated or instigated the advertisement. The form of words recommended by the Electoral Commission are:
‘Promoted or Authorised by [name], [relevant full street address]’.
Failing to include a promoter statement is an offence and subject to a fine of up to $40,000.
The requirement for a promoter statement applies to all forms of election advertising in any medium. If the election advertisement is published in visual form, the promoter statement must be clearly displayed in the advertisement. If the election advertisement is published only in an audible form, the promoter statement must be no less audible than the other content of the advertisement.
Whether a promoter statement has been clearly displayed will need to be determined on a case by case basis taking into account the type of advertisement that is published.
In the Electoral Commission’s view, this does not require that a person be able to read the promoter statement from where an election advertisement is intended to be viewed, for example on a billboard while driving. However, if a person inspects an election advertisement he or she should be able to read the promoter statement.
Given that most websites allow the user to change the font size, as long as the promoter statement is included and is readable, the size is unlikely to mean that the promoter statement is not clearly visible. Where the website or webpage is an election advertisement, a promoter statement does not need to be included in each picture, article or entry on the site, provided the promoter statement is contained on the home page or the page that contains the election advertising.
The Electoral Commission advises parties to include a promoter statement on their party lapel badges as they may be considered to be an election advertisement (see Part 6 for further information about party lapel badges).
4.3 Election advertisements promoted by candidates (and parties)
Candidate advertisements promoted by you need to include your name and address. The address can be the full street address of either the place where you usually live or any other place where you can usually be contacted between the hours of 9am and 5pm on any working day. A Post Office box or website address is insufficient.
The Electoral Act does not define what is meant by ‘any other place where he or she can usually be contacted between the hours of 9am and 5pm on any working day’.
The Electoral Commission’s view is that this can include for example:
- the candidate’s campaign office address,
- the candidate’s party headquarters address, or
- if the candidate is an MP, the MP’s parliamentary or out-of-Parliament address,
provided that this is where he or she can usually be contacted between the hours of 9am and 5pm on any working day. You do not always have to be physically at this address during these hours but it must be an address from where you can be contacted within a reasonable period of time. Candidates may need to consult their employer before including a work address on any election advertising.
Advertising undertaken by your party in relation to a by-election that may reasonably be regarded as promoting your candidacy will require your written authorisation and disclosure in your election expense return. Election advertisements promoted by your party must include the party secretary’s name and address in the promoter statement.
4.4 What is an election advertisement?
For the purposes of a by-election, an election advertisement is an advertisement in any medium that may reasonably be regarded as encouraging or persuading voters to:
- vote or not to vote for a constituency candidate (whether or not the name of the candidate is stated)
- vote or not to vote for a type of candidate by reference to views or positions that are, or are not, held or taken (whether or not the name of the candidate is stated). [See section 3A of the Electoral Act].
The Electoral Act does not define ‘advertisement’ but, because the definition of ‘election advertisement’ covers an advertisement ‘in any medium’, the Electoral Commission considers that the term ‘advertisement’ should be interpreted broadly. For example, it is not limited to traditional forms of advertising such as newspapers, posters, billboards, leaflets and radio and TV broadcasting. The Electoral Commission’s view is that if material is open to an interpretation that it is an ‘election advertisement’, a promoter statement should be included.
The test is whether the advertisement can ‘reasonably’ be regarded as encouraging or persuading voters to vote, or not to vote, for a candidate.
This is an objective test. It is based on content and context regardless of whether the advertisement includes the name of a candidate, or whether the encouragement or persuasion to vote, or not to vote, is direct or indirect.
Election advertisements that may reasonably be regarded as encouraging or persuading voters to vote, or not to vote, for a constituency candidate (whether or not the name of the candidate is stated) are called candidate advertisements. Advertisements that promote your candidacy at a by-election will be candidate advertisements.
4.5 What is not an election advertisement?
The legislation makes it clear that the following are not election advertisements:
- editorial content
- personal political views online
- a Member of Parliament’s contact details.
There is an exemption for the editorial content of a periodical, a radio or television programme, or news media Internet site. The Electoral Act does not define ‘editorial content’ but the Electoral Commission’s view is that it includes any part of the publication except advertising or advertorials. A periodical is a newspaper, magazine, or journal established for purposes unrelated to the election, that has been published at regular intervals and that is available to the public.
Personal political views online
There is an exemption for the publication of personal political views by an individual on the Internet or other electronic medium, provided the individual does not make or receive payment for publishing those views. Individuals expressing personal political views on social media such as Facebook or Twitter are covered by this exemption and will not need to include a promoter statement.
This exception does not extend to political views expressed on behalf of a party because the exemption is restricted to the publication of personal views by an individual.
Where an election advertisement posted on Facebook, Twitter or other social media site is ‘liked’, ‘retweeted’ or 'reblogged' by another person, it is the Electoral Commission’s view that the individual content appearing elsewhere on social media will not require a promoter statement if it appears on those other pages as the expression of personal political views by an individual who does not make or receive payment in respect of the publication of those views.
Member of Parliament’s contact details
There is also an exemption for the publication by members of Parliament of contact information. For the exemption to apply to contact information published within the regulated period it must:
- be published by the member in the course of performing his or her duties as a member of Parliament,
- have been funded by the Parliamentary Service,
- have been routinely published in the same medium, no more often, and to no greater extent than, and in the same form and style as it was published before the regulated period, and
- not be combined or associated with an election advertisement.
The contact information must include all of the following:
- the member’s name,
- the member’s contact details which can be a telephone number, physical or postal address, and/or e-mail address, and
- the name of the electoral district that they represent or the fact that they are a list member.
The contact information may also include one or more of the following:
- a photo of the member,
- a party name,
- a party logo,
- the member’s constituency clinic times,
- the website address for the member or the member’s party.
To fit within the exemption the proposed publication cannot include anything other than ‘contact information’ as outlined above. This exemption is only available to current MPs.
4.6 Parliamentary publicity
A list member of Parliament standing as a candidate in a by-election may need to seek advice from the Electoral Commission on whether other parliamentary publications or signage are election advertisements.
Whether publicity is candidate advertising must be determined on a case by case basis by looking at an advertisement as a whole. At one end of the spectrum, advertising expressly seeking support for a candidate is covered by the definition of candidate advertisement. At the other, advertising an MP’s contact details or a factual account of activities and events in the electorate are unlikely to be considered to be candidate advertisements.
When considering a particular item of publicity, the following are some of the factors which indicate that it may be a ‘candidate advertisement’:
- references that directly or indirectly evaluate an MP and/or their party’s effectiveness/success during the parliamentary term or previously, whether or not referenced to any other party or candidate,
- references in the communication to the by-election itself,
- references, direct or indirect, to an MP’s and/or their party’s policy platform for the by-election, or what they will do if elected or re-elected,
- references to a candidate who is not an existing MP, and
- formatting or branding of a communication in a manner similar to a candidate’s campaign material.
The Electoral Act does not provide for apportionment of costs between publicity that contains election advertising and an MP’s parliamentary publicity. If the effect of any part of an item of publicity can be reasonably regarded as encouraging or persuading voters to vote for a candidate or not vote for another candidate, then the item as a whole will be regarded as a candidate advertisement, with the total costs being attributable as an election expense.
For example, an advertisement which contains both material that can reasonably be regarded as encouraging or persuading voters to vote for a candidate and factual information, such as an MP’s contact details, is likely to be regarded as a candidate advertisement and the total costs of the advertisement attributed as an election expense, if it is published during the regulated period.
If you are not sure whether parliamentary publicity is an election advertisement the Commission is happy to provide an advisory opinion (see paragraph 4.8 below).
Care needs to be taken to ensure that election advertisements published at any time are appropriately authorised and contain the required promoter statement. Candidate election expenses can only be incurred by or with the authorisation of the candidate.
Further information for MPs is available in the Electoral Commission’s publication ‘Guidance for MP’s - Election Advertising Rules.’
4.7 Election advertisements promoted by third parties
Third parties (persons or groups other than candidates and parties or persons involved in the administration of the affairs of a candidate or party) can promote candidate advertisements in a by-election but certain rules apply, including:
- a promoter statement must be included on all third party election advertising so that the public can see who is responsible for the advertisement,
- where an election advertisement is promoted by a third party they will need to register as a promoter with the Electoral Commission if they spend more than $12,300 on election advertisements during the regulated period for the by-election,
- advertisements promoting your candidacy published by third parties must have your written authorisation,
- the costs of any third party advertisements published during the regulated period that you have authorised will count towards your candidate election expenses and will need to be disclosed in your return of by-election expenses and donations (see Part 4) as well as counting towards the third party’s advertising expenses. You will need to obtain information from the third party about costs incurred.
4.8 Requesting an advisory opinion from the Electoral Commission
You can ask the Electoral Commission for advice on whether, in its opinion, an advertisement constitutes an ‘election advertisement’ under the law. The opinion of the Electoral Commission is not legally binding but reflects the Electoral Commission’s interpretation of the law. A court of law may reach a different view. You may wish to seek your own legal advice. The Commission’s view is that relying in good faith on an advisory opinion is likely to be relevant to determining whether a person had acted wilfully or taken all reasonable steps to ensure an offence was not committed but that, of course, would be a matter for the Courts to determine.
To request an opinion, you will need to provide the Commission with a copy of the advertisement and any relevant background information such as the details of when and how it is to be published.
The Commission will treat the proposed advertisement, any supporting material, and the advice given to the requestor as confidential until the day after the day for the return of the writ for the election. Advisory opinions will then be made available on request, subject to the Official information Act 1982. This does not prohibit the requestor from releasing the advice at any time. [ See section 204 I of the Electoral Act].
4.9 References to websites
If advertising contains a website reference, you need to consider whether the website contains material that could be election advertising. Depending on how the website is being used in the advertisement, the content of the website may be considered in determining whether the advertisement is a candidate advertisement for the purposes of the Act.
4.10 Radio or television advertising
There are separate rules applying to radio or television advertising as distinct from other forms of advertising.
Candidate advertisements may only be broadcast on television or radio within the period beginning with writ day and ending with the close of the day before election day.
Electorate candidates may advertise on radio or television to promote their election as an electorate candidate. The cost of a broadcast advertisement is an election expense of the candidate. Candidates cannot share television or radio advertising with another candidate or candidates. Candidates may include information about the party they represent and its policies, for the purpose of promoting their own election. But they cannot attack the policies of other parties or candidates.
For example, a radio or television advertisement could say:
“Tick Joe Bloggs, your Y Party candidate for Wellington Central.”
All broadcasts of election advertisements must include a promoter statement (see section 4.2 above).
Candidates need to carefully consider whether any broadcasting that they undertake falls under the definition of 'election programme' for the purposes of the Broadcasting Act.
An 'election programme' is defined as a "programme that-
(a) Encourages or persuades or appears to encourage or persuade voters to vote for a political party or the election of any person at an election; or
(b) Encourages or persuades or appears to encourage or persuade voters not to vote for a political party or the election of any person at an election; or
(c) Advocates support for a candidate or for a political party; or
(d) Opposes a candidate or a political party; or
(e) Notifies meetings held or to be held in connection with an election."
It includes "visual images, whether or not combined with sounds, that consist predominantly of alphanumeric text."
The broadcast election advertising rules do not apply to a broadcaster's news, comments or current affairs programmes.
If a question arises about whether a programme is an election programme, and whether it is or is not protected by the exception for news, comment, or current affairs programmes, factors the Electoral Commission will consider include:
- the format, nature, and content of the programme, e.g. whether the format is chosen by the broadcaster;
- the extent to which the broadcaster retains control over the content of the programme;
- are candidates and political parties subject to question and challenge?;
- is the reporting objective and impartial?;
- does the programme aim to inform the public by presenting a range of viewpoints (not encourage or persuade)?;
- whether the format, nature, or content of the programme has changed;
- who initiated the programme, and when;
- who has control of the programme production;
- whether payment has been made to the broadcaster for the broadcast time, or production costs;
- if the programme has a regular schedule, and if that schedule is being maintained.
The Commission recommends a high degree of caution with candidates hosting live shows in the lead-up to a by-election, in formats that go beyond news, comments or current affairs. Broadcasting such live shows, particularly unscripted shows, can easily result in the broadcast being an 'election programme'.
4.11 Press and other advertising
Advertising in forms other than radio or television can promote a candidate and their party policies or attack another candidate and their party’s policies.
Expenditure on press advertising and other forms of promotion such as hoardings are election expenses.
4.12 Canvassing and surveys
The rules relating to the requirement for a promoter statement and election expenses apply to election advertisements that are ‘published’. However, the definition of publish expressly excludes addressing one or more persons face to face. This means that face to face canvassing activities are exempt from the requirement for a promoter statement and do not need to be considered in terms of election expenses.
Whether telephone canvassing and surveys are election advertisements depends on their content. The Electoral Act includes an express exemption for surveys and opinion polls from the definition of election expenses, but this does not mean that surveys are automatically exempt per se, which is often a source of confusion. The Courts have found that if a survey goes beyond merely eliciting voters’ views and can reasonably be regarded as encouraging or persuading voters to vote or not vote for a constituency candidate (often referred to as push polling) then it will be an election advertisement.
If survey questions promote you or your party’s policies or ask questions in a leading way and direct the answers, then the survey is likely to be an election advertisement and needs to comply with the election advertising rules.
The Electoral Commission is happy to review a proposed script or survey and provide a view on whether or not it is a candidate advertisement.
4.13 Websites and social media
Where a website, including YouTube, Facebook, Twitter or other social media, is used by a candidate, party or third party to express party or third party political views the exemption for personal political views discussed in paragraph 4.5 does not apply.
To determine whether a website or social media page is an election advertisement, the Commission looks at the content of the site or page as a whole. A candidate website may be made up of several pages containing, for example, information about the candidate and their policies, how to volunteer or donate to the candidate. If a candidate website has content that can reasonably be regarded as encouraging or persuading voters to vote for the candidate or his or her party the whole website will be an election advertisement.
The same approach is taken when considering social media. For example, whether or not a candidate's Facebook page is an election advertisement, the Commission looks at the Facebook page as a whole, including the content the candidate is responsible for publishing such as the candidate's posts and profile photos. Generally, where individuals post comments on a candidate's Facebook page the personal political views exemption is likely to apply to those posts.
Where the website or webpage is an election advertisement, a promoter statement does not need to be included in each picture, article or entry on the site, provided the promoter statement is contained on the home page or the page that contains the election advertising.
On Facebook we recommend you include the promoter statement in the 'About' section. For sites such as Twitter and YouTube the promoter statement can be included in the landing page for your site.
Where you pay for an election advertisement to appear unsolicited on another person’s web page, for example, a promoted post or banner advertisement on Facebook or Twitter, a promoter statement must be included on the advertisement itself. You cannot rely on a link back to another page which contains a promoter statement. If there are a limited number of pixels to include a promoter statement on the advertisement it is acceptable to abbreviate the promoter statement, for example 'Promoted by Anthony Secretary, 111 Any Street, Auckland' could be abbreviated to 'A Secretary, 111 Any St, AKLD'.
4.14 Broadcasting Standards Authority and Advertising Standards Authority
Election programmes on television and radio (including candidate advertisements) come within the jurisdiction of the Broadcasting Standards Authority (BSA). Election programmes must comply with the Election Programme Code which is available on the BSA website (www.bsa.govt.nz).
Complaints are made directly to the Broadcasting Standards Authority (online at www.bsa.govt.nz or PO Box 9213, Wellington). For advice on the Code contact the BSA (telephone 0800 366 996 or email email@example.com).
The content of advertising in other media (including websites) comes within the jurisdiction of the Advertising Standards Authority (ASA). Advertising must comply with the ASA Codes of Practice. The codes are available on the ASA website (www.asa.co.nz).
Complaints can be made to the Advertising Standards Complaints Board (telephone 04 472 7852 or email firstname.lastname@example.org).
The Online Media Standards Authority (OMSA) handles complaints about news and current affairs published online by any of its members. Online news and current affairs of its members must comply with OMSA's Code of Standards. The code and list of members are available on the OMSA's website (www.omsa.co.nz). Complaints can be made to the OMSA's complaints committee online at www.omsa.co.nz.
The New Zealand Press Council is responsible for considering any complaints about the editorial of a newspaper, magazine or periodical in circulation in New Zealand (including their websites).
4.15 Electoral signs
Local authorities are responsible for regulating when, where and how signs, including election signs can be displayed. Candidates should consult with their local authority about the rules in their area before putting up any election signs.
The Electoral Act 1993 allows for election signs up to three square metres in size to be put up in the two months before election day. This provision overrides any more restrictive local authority rules about size and timing of the display of signs.
Any local authority rules about things like application procedures and the location and density of signs still apply. Larger signs may be put up if local authority rules allow. Signs may be put up earlier if local authority rules allow.
You must not pay an elector of a district for providing a place to exhibit a sign or hoarding in that district unless it is in the course of the elector’s business.
It is an offence under the Electoral Act to display election signs on election day. There is no other restriction in the Act on when electoral signs may be displayed.
You do not have to account for the costs of the framework used to support a hoarding as an election expense (see Part 5 for more information on what are election expenses).
4.16 Using schoolrooms for election meetings
Candidates are entitled to hold election meetings in public schoolrooms free of charge (apart from the cost of lighting, cleaning and repairing any damage). Three days notice must be given to the governing body of the school. Applications must be granted on a “first come first served” basis.
Treating is the provision of food, drink, and entertainment to persons with the intention of corruptly influencing their vote and is a criminal offence. [See section 217 of the Electoral Act for a full description].
Section 217 is broadly phrased in the persons to whom it applies: it covers:
- Actions by "any person" and extends both to their actions and actions "by any other person on his or her behalf"; and
- Actions whether taken "directly or indirectly"; and
- Actions "to or for any person".
Section 217 is broadly phrased as to the period during which it applies: it covers actions "before, during, or after an election" i.e. it is always applicable.
Section 217 is broadly phrased as to the actions it covers: it makes anyone who"
- "provides", or
- "pays whooly or in part the expense of giving or providing";
- "any food"; or
- "drink"; or
- "entertainment"; or
- "provision" - a word of uncertain application
liable for prosecution for the corrupt practice of treating, if done "for the purpose of corruptly" influencing that person to, generally put, alter their voting behaviour or procure the defendent's election.
It also makes the person corruptly accepting the food, drink, entertainment or provision liable for treating.
The consequences of a conviction for treating are major, including imprisonment, loss of a parliamentary seat or disqualification as a voter for 3 years.
Although the ambit is broad, the threshold for establishing treating is also high - a corrupt intention is required. The Courts have previously held that the offence of "treating" requires an intention on the part of the person treating to influence the votes of the persons treated.
The question of intention is an inference of fact which the Court has to draw. If in any case, looking at all the circumstances, the reasonable and probable effect if the alleged treating would be to influence the result of the election, or to influence the votes of individual voters, it might well be inferred that it was the intention of the persons treating that this effect would follow. This means that the scale of what is being provided is relevant to whether the provision would be likely to influence and whether the intention of the provider was to influence a voter.
The Electoral Act states that the provision of a light supper after an election meeting does not constitute the offence of treating. The provision of a cup of tea or coffee and a light snack after a campaign meeting, therefore is not treating.
There are very few Court cases on the offence which makes it difficult to be definitive about what will constitute treating. However, in the Commission's view these are some of the factors that we believe are relevant considerations:
- the scale and commercial value of the food, drink, entertainment or other provision are relevant. In our view this is key: treating requires a corrupt intent and a likelihood of influence - it does not apply to ordinary hospitality that is incidental to a political meeting,
- the target audience of the provision - providing food, drink, and entertainment at an AGM, campaign launch or annual party conference where the primary audience is party members is unlikely to be treating, but providing food, drink and entertainment at a public meeting carries more risk, and
- the extent to which the provision is accompanied by other political material.
In the Commission's view, to avoid complaints it is prudent for parties and candidates and their supporters to act cautiously and with restraint in providing food, drink - especially alcohol - and entertainment as part of their political activities.
Any person who is concerned that what they are proposing could constitute treating can seek the view of the Electoral Commission on particular proposals and the Commission will provide its view. The opinion of the Electoral Commission is not legally binding. A Court of law may reach a different view. Parties and candidates who have concerns about compliance can also seek their own legal advice.
4.18 Advance voting
Advance voting for those who are unable to get to a voting place on election day will be available from 17 days before election day up to the day before election day. Locations will be published on www.elections.org.nz.
The prohibitions applying to electioneering on election day do not apply during the advance voting period. However, campaigning at advance voting places needs to be managed so that:
- Voters are not impeded from voting; and
- Voters are not interfered with either in the voting place or on the way there with the intention of influencing them or advising them how they should vote.
For candidates and campaign managers our advice is:
- Please exercise restraint around the vicinity of Advance Voting Places during the advance voting period to avoid complaints from voters and to ensure that they have a good voting experience
- Campaigning should not be undertaken immediately outside advance voting places
- Campaign material should not be distributed or displayed immediately outside advance voting places.
4.19 Contacts with public servants
Public servants serve the government of the day. In order to maintain the confidence of successive governments, they must act and be seen to act apolitically. Therefore, public servants, whether in national, regional or local offices, must not comment on:
- party political matters, or
- the merits of government policy, or
- alternatives to government policy.
If you have questions on these matters you should address them to Ministers.
You, like any other member of the public, may get information from public servants under the Official Information Act.
You can get more detailed information on contact with public servants from the State Services Commission’s website: www.ssc.govt.nz.