A postal referendum on the question ‘Do you support the Government selling up to 49% of Meridian Energy, Mighty River Power, Genesis Power, Solid Energy and Air New Zealand?’ ran from Friday 22 November to Friday 13 December 2013.
Any individual or group could undertake advertising to promote either a ‘Yes’ or ‘No’ vote on the referendum question.
Return of expenses
Any person at whose direction an advertisement is published or broadcast promoting one of the answers to the referendum question must file a return of expenses with the Electoral Commission by Friday 17 January 2014 (being one month after the date that the result of the referendum is declared under section 49 of the Referenda (Postal Voting Act 2000). The Return of Advertising Expenses form is available for download at the bottom of this page.
The return must list where every advertisement was published or broadcast and the cost of every advertisement.
Advertisers who fail to meet these requirements are committing offences and may be referred to the Police.
The returns are open to public inspection.
Advertisers are subject to a $50,000 (including GST) spending limit for the petition and a $50,000 spending limit for the referendum. The spending limit for the petition relates to petition advertising published or broadcast from 4 May 2012 to 3 September 2013 (a separate return must be filed for these expenses). The spending limit for the referendum relates to any advertising that is used or appears to be being used to promote one of the answers to the referendum question, and is published, or broadcast from 3 September 2013 until 13 December 2013.
It is a serious offence for any person to, either alone or in combination with others, knowingly spend more than the $50,000 expenditure limit. The offence is subject to a fine of up to $20,000. Persons or organisations that formally or informally enter into an agreement or understanding about their referendum advertising should assume that they are subject to a single advertising expenditure limit.
All advertising relating to the referendum must contain a statement setting out the name and residential or business address of the person at whose direction it is being published. The form of words recommended by the Electoral Commission is:
‘Promoted or Authorised by [name], [relevant full street address]’
An email, PO Box or website address is not sufficient.
Meaning of referendum ‘advertisement’
Whether an advertisement is an ‘advertisement in relation to a citizens initiated referendum’ will depend on both the content and context in which it is displayed. This is an objective test.
The referendum legislation does not define what is meant by an 'advertisement'. However, the scheme and purpose of the legislation suggest a reasonably wide interpretation of the term to cover any type of publicity that can reasonably be regarded as being used or appearing to be used to promote one of the answers to the question in the indicative referendum, including websites, periodicals, newsletters, brochures, fact sheets and media releases.
Referendum advertising is allowed throughout the postal voting period.
Exemption for news or comment
There is an exemption in section 41(4) of the Citizens Initiated Referenda Act for news or comments in a newspaper or other periodical or in a radio or television broadcast. Content that falls within the exemption will not be subject to the referendum advertising rules under the Act.
Expenditure to be included in the referendum return
The Citizens Initiated Referenda Act does not specify which costs associated with advertising must be included in the return. The Electoral Commission’s advice is you should include the cost of preparing, printing, publishing and distributing the advertisements, including free and discounted items that would otherwise be expenses.
In the Commission’s view, the costs of venue hire for referendum meetings are not referendum expenses. However, advertisers may need to consider the application of the advertising and expenditure rules to any proposed publicity advertising the meetings.
Food, travel and legal costs are not referendum expenses.
Volunteer labour, that is where a person provides their own labour, in their own time, free of charge, is not an expense. For example, there is no cost to be attributed for the time volunteers spend delivering leaflets. However, a reasonable value should be included for staff time that relates to the preparing, printing, publishing and distributing of advertising where such costs are met by a third party. For example, where a graphic design company’s paid employees design and prepare advertising but the cost is not charged to the promoter. Where it is difficult to put a value on staff costs it is advisable to base this on what the persons are paid during the time spent on the preparation or distribution of the advertising.
The referendum legislation does not provide for apportionment of costs between publicity that contains referendum advertising and an MP or party’s parliamentary publicity. Therefore, if any part of a publication (for example an MP’s newsletter) contains referendum advertising it means the whole item can be regarded as referendum advertising, with the total costs being attributable as a referendum advertising expense. Parliamentary parties and MPs may be best advised to keep publicity about their parliamentary work and the referendum separate.
Communications that explicitly seek support for casting a vote for one of the answers to a referendum under the Citizens Initiated Referenda Act 1993 are excluded from funding entitlements for parliamentary purposes under the Parliamentary Service Act 2000. For further information on the parliamentary funding rules you should contact the Parliamentary Service.
There are no specific apportionment provisions in the Citizens Referenda Act. If an item within a single publication (i.e. in a brochure or leaflet) is an advertisement for the purposes of the Act, the publication is an advertisement for the purposes of the Act and the entire cost of the publication is a referendum expense.
There is no express provision in the Act allowing for the apportionment of costs for items re-used from the general election or from the referendum petition. In the Commission’s view, in the absence of any express provision for such an apportionment in the Act, the entire costs of such advertisements published or broadcast in relation to an indicative referendum should be included within the $50,000 spending limit.
The costs of any advertising for the petition such as signs that are going to be re-used for the referendum need to be included within both expenditure limits and reported in both returns.
Websites and viral campaigning
Where advertising encourages a person to visit a website the content of the website also needs to be considered to determine whether the advertisement is an advertisement in relation to a citizens initiated referendum.
If the website or webpage is a referendum 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 referendum advertising.
Where you pay for an election advertisement to appear unsolicited on another person’s web page, for example, a banner advertisement on Facebook, we recommend a promoter statement is included on the advertisement itself.
If you put advertising material on your website and encourage other people to download and distribute it, the Electoral Commission’s view is you are the promoter of the material and any person who prints and distributes it is simply the ‘publisher’. Such advertising must contain a promoter statement including your name and address. The reasonable market value of printing and distributing such resources (for example, paper, ink, postage stamps etc) would be regarded as materials being provided to you free of charge and would need to be included in the calculation of your referendum expenses. Be aware this type of campaigning does have its risks as it may create obligations for compliance over matters that are somewhat beyond a promoter’s control. If you want to use this type of campaign you need to be sure that you put processes in place to ensure that you can comply with your obligations to disclose the expenses.
If someone takes your online advertising and shares it online with others, this activity does not need to be accounted for in your return of referendum expenses.
Referendum advertising and the election advertising rules
Advertisers will also need to consider whether any referendum advertisements that are being published are election advertisements and subject to the election advertising rules under the Electoral Act 1993. More information about the election advertising rules can be found on the Elections website at http://www.elections.org.nz/parties-candidates
If you are not sure whether an advertisement could be an election advertisement for the purposes of the Electoral Act, you can seek an advisory opinion from the Electoral Commission under section 204I of the Electoral Act.