5.1 Introduction

The Electoral Referendum Act 2010 sets out the rules for advertising in the 2011 Referendum. The key messages are:

Referendum advertisements published from 1 January 2011 until 25 November 2011 must include a promoter statement.

Candidates broadcasting referendum advertisements need to consider the broadcasting rules.

Candidates promoting referendum advertisements will be ‘promoters’ under the Electoral Referendum Act.

Promoters must register with the Electoral Commission if they spend, or intend to spend, over $12,000 on referendum advertising during the regulated period.

Registered promoters cannot spend more than $300,000 on referendum advertising during the regulated period.

Registered promoters who spend more than $100,000 on referendum advertising in the regulated period must file an expense return.

The full cost of advertisements that are both referendum and election advertisements are to be counted as both referendum expenses and electoral expenses.

A referendum advertisement cannot be published on polling day.

REFERENDUM ADVERTISING

5.2 All referendum advertisements must contain a promoter statement

All referendum advertisements published from 1 January 2011 until the close of 25 November 2011 (the day before polling day) must include a promoter statement featuring the name and

address of the person that has initiated or instigated it (‘the promoter’). [See section 42 of the Electoral Referendum Act].

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 referendum advertising in any medium. If the referendum advertisement is published in a visual form, the promoter statement must be clearly displayed in the advertisement. If the referendum advertisement is published only in an audible form, the promoter statement must be no less audible than the other content of the advertisement.

The Electoral Commission advises candidates to include a promoter statement on any referendum lapel badges as they may be considered to be a referendum advertisement (see Part 6 for further information on lapel badges).

For a registered promoter, the name and address in the promoter statement must be the same as the name and address that appears on the register.

5.3 Referendum advertisements promoted by a candidate

Referendum advertisements promoted by a candidate need to include a promoter statement that features the candidate’s name and address.

The promoter statement requirements for referendum advertisements are the same as for election advertisements with necessary modifications (see section 3.2).

A candidate may promote their own election in combination with a referendum advertisement but the full costs of the advertisement have to be counted as a candidate referendum expense and as a candidate election expense. [See section 205 of the Electoral Act and section 40 of the Electoral Referendum Act].

Similarly, a referendum advertisement the party promotes may also promote one or more of the party’s electorate candidates with the written authorisation of each candidate. The full costs of the advertisement will have to be counted as the party’s referendum expense.

The candidate will also need to account the full cost of the advertisement as an election expense.

5.4 What is a referendum advertisement?

A referendum advertisement is an advertisement in any medium that:

• is published in the period from 1 January 2011 until the close of 25 November 2011 (the day before polling day), and
• may reasonably be regarded as encouraging or persuading voters to vote, or not to vote, in a particular way in the referendum. [See section 31 of the Electoral Referendum Act].

The Electoral Referendum Act does not define ‘advertisement’ but, because the definition of ‘referendum 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 an advertisement 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, in a particular way in the referendum. This is an objective test. It is based on content and context regardless of whether the advertisement refers by name to a particular option in the referendum, or whether the encouragement or persuasion to vote, or not to vote, is direct or indirect.

The Electoral Commission is happy to discuss any questions that arise in respect of referendum advertisements.

All requirements in respect of referendum advertisements apply to:

• referendum advertisements published in New Zealand even if the promoter is outside of New Zealand, and
• referendum advertisements published outside of New Zealand where the promoter is in New Zealand.

[See section 3 of the Electoral Referendum Act].

Publish means to bring to the notice of a person in any manner excluding addressing one or more persons face to face. [See section 3D of the Electoral Act].

5.5 Joint referendum and election advertisements

A referendum advertisement promoted during the regulated period, particularly by a party or candidate, may also fall under the definition of an election advertisement. If you promote a referendum advertisement, assume the advertisement will also be deemed to be a candidate advertisement and that you will need to include the cost of the advertisement as both an election expense and a referendum expense.

[See section 205 of the Electoral Act and section 40 of the Electoral Referendum Act].

5.6 What is not a referendum advertisement?

The legislation makes it clear that the following are not referendum advertisements:

• editorial content (see paragraph 3.5 for further information),
• personal political views online (see paragraph 3.5 for further information),
• statements that do not promote a particular option in Part A or B of the referendum voting paper.

5.7 Broadcasting

The Electoral Referendum Act and the Broadcasting Act do not restrict the broadcasting of referendum advertisements. However, parties and candidates would need to carefully consider whether any broadcasting that they undertake about the referendum falls under the definition of an ‘election programme’ for the purposes of the Broadcasting Act.

You should assume that a referendum advertisement promoted by a candidate will be an ‘election programme’. If so, it can only be broadcast starting on 26 October 2011 (Writ day) up to and including 25 November 2011 (the day before polling day), and will be subject to the rules for broadcast of election programmes.

Broadcast of joint election programme and referendum advertisement

A candidate may use their own funds to pay for the broadcasting of a joint election and referendum advertisement. If a candidate broadcasts a joint advertisement it will be an ’election programme’ for the purpose of the Broadcasting Act. The entire cost of the broadcasting, including money spent on production costs, will be both an election and referendum expense for the candidate.

Election programmes can only be broadcast starting on 26 October 2011 (Writ day) and up to and including 25 November 2011 (the day before polling day).

Appendix C provides a summary of the broadcasting rules applying to candidates.

REFERENDUM EXPENSES

5.8 Registration

The Electoral Referendum Act requires individuals or organisations who spend, or intend to spend, more than $12,000 on referendum advertising during the regulated period to register as a registered promoter with the Electoral Commission.

The regulated period for the 2011 General Election will start on Friday 26 August 2011 and will end on the close of 25 November 2011 (the day before polling day).

The requirement to register applies to parties and candidates.

The form for registration is available from the Electoral Commission or its website www. elections.govt.nz . Details of registered promoters for the General Election and Referendum will be published on the website.

5.9 Expenditure limit

A registered promoter’s referendum expenses during the regulated period must not exceed $300,000 (incl GST).

5.10 Referendum expenses

A promoter’s referendum expenses are the costs of advertising in any medium that:

• may reasonably be regarded as encouraging or persuading voters to vote or not to vote in a particular way in the referendum,
• is published, or continues to be published, during the regulated period, and
• is promoted by the promoter, or any person authorised by the promoter.

Promoters’ referendum expenses include:

• the cost incurred in the preparation, design, composition, printing, distribution, postage and publication of the referendum advertisement,
• the reasonable market value of any material used for the advertisement, including materials provided to the promoter free of charge or below reasonable market value,
• the entire advertising expenses of an advertisement that is both a referendum advertisement and an election advertisement (see paragraph 5.12 below).

[See section 32 of the Electoral Referendum Act].

The costs of surveys or opinion polls, volunteer labour, any framework that supports a hoarding (other than a commercial framework), or the cost of replacing materials destroyed through no fault of the promoter are not referendum expenses.

Surveys and opinion polls

The exclusion for surveys and opinion polls is not unlimited. If a survey goes beyond merely eliciting voters’ views and can reasonably be regarded as encouraging or persuading voters to vote or not to vote in a particular way in the referendum then it will not be a survey or public opinion poll for the purpose of the Electoral Referendum Act. It will be a referendum advertisement and the costs associated with the survey are referendum expenses.

Signage on vehicles

The costs of referendum advertisement signage on campaign cars and other forms of mobile advertising are referendum expenses. However, the referendum expenses do not include the running costs of any vehicle used to display a referendum advertisement if the use of the vehicle for that purpose is not the subject of a contract, arrangement or understanding for payment.

Items distributed for public display

If a candidate distributes items such as t-shirts, bumper stickers and flags before 26 August 2011 (the start of the regulated period), the candidate should assume that they will continue to be displayed during the regulated period and include the cost of these items as a referendum expense. [See section 39 of the Electoral Referendum Act].

However, care should be exercised with such items because you could be exposing your supporters to risk of prosecution if they display the items on election day (see section 6.2).

5.11 Referendum expenses paid before or after the regulated period

Expenses paid for or incurred, either before the regulated period, or after polling day, must be included in the return to the extent to which they relate to referendum advertisements published within the regulated period.

Where a referendum advertisement is published before and during the regulated period, the promoter is responsible for apportioning the advertising expenses so that only a fair proportion of the expense is attributed to the regulated period.

5.12 Expenses for joint referendum and election advertisements

Expenses cannot be apportioned between joint referendum and election advertisements.

If a candidate promotes an advertisement that encourages people to vote for the candidate and supports a particular option in the referendum, the entire cost of that advertisement must be accounted for twice by the candidate: first as an election expense and second, as a referendum expense.

If the candidate authorises a third party to publish the same advertisement the entire cost of the advertisement will form part of the candidate’s election expenses. The same costs will also need to be included as part of the third party’s election expenses and referendum expenses.

See Appendix D for a summary of how the costs of referendum advertisements are to be accounted.

5.13 Paying referendum expenses

Invoices for referendum expenses must be sent to the promoter within 20 working days of the Electoral Commission declaring the official results of the general election. The Electoral Commission expects that the deadline will fall on 27 January 2012, unless there are recounts.

The promoter must pay any bill within 40 working days of the declaration. It is an offence not to do this. Sections 59 to 60 of the Electoral Referendum Act set out a procedure to follow if a bill is disputed. The Electoral Commission expects that the deadline will fall on 27 February 2012, unless there are recounts.

5.14 Keeping records of referendum expenses

If the candidate is promoting referendum advertisements, the candidate must take all reasonable steps to keep records of the referendum expenses, including expenses incurred while they are not registered. All registered promoters must keep invoices and receipts for all referendum expenses of $50 or more for three years after polling day.

5.15 Return of referendum expenses

Registered promoters who spend more than $100,000 (incl GST) on referendum expenses during the regulated period must file a return with the Electoral Commission.

The return must:

• be made on form M-41 Prom Exp Ref, and
• be filed within 70 working days after polling day for the general election (before 26 March 2012).

The return form (M-41 Prom Exp Ref) is available through the Electoral Commission or its webiste at www.elections.govt.nz

The form requires the promoter to provide details of all referendum expenses incurred, including expenses incurred by any person authorised by the promoter.

The referendum expenses of promoters of referendum advertisements that the promoter has authorised need to be included in the form.

The Electoral Commission may require a registered promoter to obtain an auditor’s report if the Commission has reasonable grounds to believe that a return may contain any false or misleading information.

Promoters who fail to meet these requirements are committing offences and may be referred to the New Zealand Police.

The returns are open to public inspection and will be published on the Electoral Commission’s website.

5.16 Polling day activities

Referendum campaigning on polling day is prohibited and is a criminal offence. The full list of prohibited activities is set out in section 197 of the Electoral Act and effectively prohibits anything on polling day (26 November 2011) which can be said to interfere with or influence voters, including processions, speeches or public statements. Please consult section 197 for further information.

The prohibitions apply with any necessary modification to referendum activities. For example, any activities (including advertising) that promote a particular option on the referendum are prohibited on polling day. There is an exception for party and referendum lapel badges. Party officials and supporters can wear both a party lapel badge (or rosette) and a referendum lapel badge (or rosette).

For further information see Part 6.