KEY POINTS:
The Electoral Commission says parties and groups involved in the election should be careful before trying to side-step limits on spending by using push-polling or politically-loaded surveys.
Under the Electoral Finance Act, parties, candidates and third parties do not have to include the costs of surveys or polling
in their election spending cap.
However, Electoral Commission head Helena Catt said anyone who tried to use push-polling or politically loaded survey questions thinking it was exempt from inclusion in the election spending limits could get caught out.
She said the limits of the provision were still untested, despite a similar clause existing under the previous law.
"The exception is for opinion polls and surveys, so it depends how one defines those. We would have to decide what a poll or survey is under that provision, for example whether it covers push-polling or only includes polling by polling companies, and whether there is an ethical dimension to it."
Dr Catt said it could become an issue in this election if parties, candidates or third parties used surveys to promote their policies or criticise those of others.
The High Court has indicated there are limitations - in its judgment on Winston Peters' legal challenge of Bob Clarkson's election spending after 2005, the Tauranga High Court observed push-polling was not covered by the exemption.
The court said the exemption for polls "reflects the facts that polls by definition do not seek to persuade, but rather to ascertain public opinion".
The controversy around the Electoral Finance Act has also made legal challenges more likely and parties must also spread their $2.2 million spending caps out over almost 11 months before an election instead of the previous period of three months.
The new act has also broadened the definition of election advertising to include references to party policies, regardless of whether a party is named.
Dr Catt said polls and surveys could also be election advertisements, regardless of whether they met the exemption for election expenses.
Adding survey questions to material which was otherwise an election advertisement would also not make the entire brochure exempt from the spending cap.
The Electoral Commission is considering a NZ First advertisement which includes a survey, but the party claimed it is not an election advertisement.
The advertisement, which does not have an authorising statement, includes surveys on the China free trade agreement, and any sale of Auckland International Airport or the dairy industry.
Leader Winston Peters has argued it was not an election advertisement because it did not refer to its stance on policies of a future Parliament.
Several National Party MPs are currently sending out surveys, paid for by Parliamentary Services, asking voters which issues are worrying them.
Among the options are youth crime, housing, access and quality of education, "shortage of GPs" and waiting lists.
Leader John Key said the survey form had been checked by both the Chief Electoral Officer and Parliamentary Services to ensure it met their guidelines.
The forms also carry a statement that the information was being collected by the MP "in his/her capacity as member of Parliament and will be used for related activity".
