Election season is upon us! And with it comes the usual round of disputes and decisions about election funding and advertising.

In this article, our experts take a look at a recent example.

In the first of the 2023 iterations, the High Court declined a challenge brought against the allocation of public funding to minor parties by the Electoral Commission (the Commission) for the upcoming election. The challenge was brought by NZ Outdoors & Freedom Party, Vision NZ, Freedoms New Zealand and Aotearoa Legalise Cannabis Party (the Parties) who argued the Commission had failed to correctly apply the mandatory criteria set out in legislation in determining how funding should be allocated between parties.

The claim was unsuccessful. The Court found the Commission had exhaustively considered the factors required, including the Parties’ past performance, previous electoral success, public opinion polls, party membership numbers, and “other indications of public support, such as social media following”.

What led to the challenge?

Public funding to political parties for the purposes of general elections is regulated by the Broadcasting Act 1989 (the Act). The Act empowers the Commission to allocate a certain sum each election cycle. Parties are entitled to use their allocations to prepare and buy advertising on TV and radio, for example.

In deciding on the allocation of the funding, the Commission considers: 

• the purpose of the Act, which is to enable political parties to broadcast election programmes for Parliamentary elections free of charge; and 

• six mandatory criteria, including the number of persons who voted in the immediately preceding election for that party, the number of members in the previous Parliament, and indications of public support for parties, such as the results of public opinion polls. 

For Election 2023, the Commission had $4,145,750 to allocate across 16 political parties. It awarded 55% of the allocation to the two major parties combined, and only 1.6% of the allocation to each of the Parties in the present case. 

For the Commission, applying the allocation criteria is a difficult and time-consuming process. They acknowledge that the outcome is almost always unpopular as parties have different views about fairness.

The Commission must balance rewarding larger parties who enjoy greater levels of public support against small parties who must also be given an opportunity to present their policies to the public - no matter their merit. 

The Parties, clearly dissatisfied with the size of their allocations, argued the Commission failed to properly consider the mandatory criteria, and that the allocation was illegal, irrational and contrary to the principle of legality. In particular, the Parties contended that the Commission: 

• failed to have adequate regard to recent by-election results and other indications of public support;

• only averaged the results of polls since the 2020 election - disadvantaging parties not named in polls;

• failed to allocate sufficient funds for the Parties to fairly convey their policies to the public;

• failed to make a fair provision for parties which formed relationships after the broadcasting allocation; and

• failed to consider perceptions and other operational difficulties advertising using social media, including overseas control of social media. 

High Court decision: the Commission had a difficult balance, but it got it right here 

The Court, in dismissing the claim, found three things: 

1. While the overall criteria for allocating funds favour established larger parties, the allocations made by the Commission did not simply mirror the results of the last general election. The range of factors considered by the Commission were indicative of ongoing public support and the weight the Commission gave to the factors was a matter for its judgement and discretion. 

2. The Commission is entitled to a degree of discretion in this area, and the Courts maintain a relatively “hands off” approach to reviewing its decisions. This is because the Commission must be able to act independently, free from political or judicial influence. It would not be appropriate for a single judge to “substitute their own view” of appropriate funding allocations.

3. The Court acknowledged the Parties’ argument that while advertising on social media gets ‘more bang for your buck’, there are operational difficulties with this as against more expensive advertising on traditional platforms. However, the Commission did not rely on the availability of social media advertising in deciding to allocate the amount given. 

If you would like to discuss this, or any other election issues further, please contact our experts. 

Thanks to Amarind Eng (Solicitor) and Tim Bremner (Senior Solicitor) and Elizabeth Keall-Ross (Senior Solicitor) for their assistance writing this article.