The plaintiffs are a group of minor political parties - NZ Outdoors & Freedom Party, Vision NZ, Freedoms New Zealand and the Aotearoa Legalise Cannabis Party. They unsuccessfully challenged the Electoral Commission’s decision to allocate broadcasting time, which they believed was unfairly distributed between the larger and smaller parties.
Under part 6 of the Broadcasting Act 1989 (“Act”) any registered political party is eligible to receive an allocation of broadcasting funding, in advance of a General Election. Allocation decisions are made by the Electoral Commission (“Commission”), by reference to a list of criteria set out in s 78(2) of the Act.
The status quo and the tension within the allocation criteria lie at the heart of this case. The applicants are all small political parties who argue that the larger, established parties receive too much of the overall allocation amount.
The combined allocations the plaintiffs received ahead of the 2023 General Election constituted 4.8 per cent of the total funding pool, whereas the combined allocation to Labour and National was 55 per cent. The five parties currently represented in Parliament received 76.8 per cent of the total pool.
On 17 October 2022, the Minister of Justice notified the Commission that the amount of money appropriated by Parliament for political party broadcasting election programmes and general election advertising for the 2023 General Election was $4,145,750.00 (GST inclusive). The 2023 General Election will be held on 14 October 2023.
The Commission began the allocation process by issuing a Gazette notice. Each of the applicants notified the Commission of their qualification for allocation and lodged the required paperwork.
Before allocations, submissions were given by all parties, detailing their applications and public support. The Commission also received other relevant information from various sources which included each party’s membership numbers, legal advice and polling data. A subsequent decision was made by the Commission with seven categories of funding, which included all major parties and all of the applicants, except Vision NZ, who were considered as a part of the Freedoms NZ (‘”umbrella” party).
An allocations decision was made by the Commissioner and as a result, NZ Outdoors & Freedom Party, Freedoms NZ and the Aotearoa Legalise Cannabis Party were all placed within the seventh (lowest) category. Each received a 1.6 per cent ($66,332.00) allocation.
The decision recorded that the Commission had considered its previous allocation decisions, but took the view it was not bound by them nor the underlying processes. It stated that it expressly had regard to each of the s 78(2) factors.
The day after the Decision was issued, NZ Outdoors & Freedoms Party and Freedoms NZ announced an intention to work more closely together. Within a short time, the advised that they now considered NZ Outdoors & Freedoms to be a component part of Freedoms NZ and that the relevant funding allocations would be varied accordingly. The parties started Court proceedings.
The plaintiffs challenged the decision on three grounds:
1. the Commission failed to have any or adequate regard to the mandatory criteria in section 78(2) of the BA;
2. the Commission acted illegally, irrationally and contrary to the principle of legality; and
3. the Commission had failed to clarify how they grouped parties together as an “umbrella” party.
The substantive relief pleaded for these causes of action was a direction that the Commission reconsidered the allocations and a direction that the Commission retained all funds until the review and reallocation was completed.
By-election results and other indications of public support: s 78(2)(b) and (e)
The Court agreed that the s 78(2) allocation criteria have always favoured the established political parties. It considered the history of allocations from the 1990s to date and concluded that the allocations here did not simply mirror the results of the last general election.
It was specifically noted that the Courts have repeatedly emphasised the importance of the Commission’s discretion in this area (and others) and the related importance of the Courts maintaining a relatively “hands off” approach.
Since the Commission considered various factors which were relevant for determination (and none of those factors could properly be seen as conclusive evidence), the weight to be given to each was necessarily a matter of judgment and discretion for the Commission.
Sufficient funding to fairly convey applicants’ policies to the public: s 78(2)(f)
The Court considered what a “fair opportunity” and “fairness” meant in the context. It was noted that “fairness” under s 78(2)(f) required the allocation of funding to each party that was sufficient to purchase at least some television advertising, referring to previous court decisions in this area. The parties were able to purchase some of the advertising slots on television – even if these were not the best options available. The Court concluded that s 78(2)(f) was met.
Umbrella and related parties: s79(3)
Freedom NZ (an umbrella party) was allocated the same funding as the other single parties in category seven and Vision NZ (a component party) received no funding at all. In addition, the Commission indicated to NZOFP that it will lose its separate funding if it chooses to become a component part of Freedom NZ.
The basis for these decisions was s 79(3) of the BA which provides:
An allocation may not be made to an individual party if that party is to receive an allocation as part of a group of related parties
The Court considered the history of s 79(3), referring to the Parliamentary debates on the Broadcasting Amendment Bill (No 2) 1993. It concluded the legislative history confirmed the purpose of s 79(3) is to avoid “double-dipping” in the form of a party effectively receiving an allocation both as an individual party and as part of a group. “Umbrella” parties were somewhat disadvantaged for the broadcasting allocations but had an ability to meet the 5% threshold to enter Parliament.
The applicants' request for a review was dismissed, as no mistakes were found in the Commission's actions. Even though there are recognised issues and complexities with Part 6 of the BA, resolving these problems is not something the Courts can do. It's a matter for Parliament to adjust as and when it sees fit.
Following the 2023 general election, the Independent Electoral Review released its final report and recommendations for the Justice Minister. The report criticised the current election broadcasting regime, agreeing with submitters that it creates a barrier to smaller and new parties and that the allocation criteria appears to unfairly favour existing and larger parties. The report recommended that the broadcasting regime be abolished altogether.
For further information on this case or similar issues, please contact Director Brigitte Morten
