In the 2018 report on the 2017 General Election, 47 per cent of the total 2,630,173 votes occurred before election day. Advance voting almost doubled in size from 2014 to 2017 and the number of overseas voters increased by 52 per cent.
The commission recommended that Parliament review the rules applying to election day - taking into account the growth of social media and advance voting. It recommended that "as a minimum, that advertising of news media websites that contain election-related material is not unduly restricted".
Parties clash over polling day restrictions
The Justice Select Committee considered the issue during its inquiry into the election in 2019. On the issue of Section 198 of the Electoral Act, which empowers the commission to remove statements, names, emblems, slogans, or logos from public places on polling day: Government members said the ban on election day advertising should be removed.
They suggested one option would be to remove the ban on election day advertising except in a buffer zone around voting places.
It would be similar to the current rules for advance voting under section 197A.
The National Party members of the committee opposed the move, saying: "We value the NZ tradition that, after voters have been pounded with electoral advertising for the weeks up to election day, election day should be free of advertising and of political content".
"It sets the right tone for a major decision, not dissimilar to the rules that require silence in Parliament during a vote, or the quiet and private deliberations of the jury in a court."
The party did not agree that the increase in advance voting sufficiently justified changes to the culture of election day, saying the actual number of votes on election day was more than 10 times greater than any other day.
Where to from here? According to an Electoral Commission spokesperson, the rules around campaigning are a "matter for Parliament and we would expect this to come up again for discussion in the review of the 2020 election".
Complaints matrix
The Electoral Commission does not actively monitor conduct on election day, or buffer zones during advance voting, but it responds to complaints by removing material, or facilitating the issuing of a fine of up to $20,000.
The Electoral Act is one mighty piece of legislation with 84 sections and what appears to be over a billion amendments. Needless to say, the complaints process is complicated. The Electoral Commission deals with campaigning on election day, spending limits on election advertising, and failing to provide promoter statements, for example.
The Broadcasting Standards Authority deals with complaints involving candidate or party TV or radio advertisements; the Media Council for print media; the Advertising Standards Authority for content of print, outdoor, or online paid advertising; and local councils deal with signage. Interestingly, unpaid personal political views online are not regulated, but would be subject to Facebook terms and conditions, for example.
Who could forget the infamous case of Eight Mile Style v NZ National Party where the National Party used a song not too dissimilar to Eminem's "Lose Yourself" in its 2014 campaign. The Wellington High Court ruled against the National Party, ordering them to pay more than $600,000 for copyright infringement. This was partially overturned by the Court of Appeal, which reduced the damages to $225,000.
Landlord vs tenant
As an aside, advertising signs on land differ from council to council but it is an interesting area of law insofar as what happens if you, the renter, are a Green Party supporter, but your landlord is in love with National and wants to promote their signage?
In an Auckland context, section 9 of the Auckland Transport Election Signs Bylaw 2013 dictates that a person who displays an election sign on a private site visible from the road must get the consent of the occupier, or if an occupier cannot be located, the consent of the owner of the site must be obtained.
Interestingly, there is nothing in the current bylaw that talks to politically enthusiastic renters who wish to advertise and who have landlords who are MIA.
But those who breach the bylaw may be subject to a fine of up to $500. Seeing as renters are well, renters and not owners, it is probably not worth the risk.
