Prime Minister Jacinda Ardern and director general of health Dr Ashley Bloomfield arrive for a joint press conference. Photo / Mark Mitchell
ANALYSIS:
In the lead-up to the election, the Herald is putting claims made by parties and politicians to the test in our Fact or Fiction? series. Today, Claire Trevett examines whether a video featuring Dr Ashley Bloomfield, posted on Labour's website, was in breach of the rules and why the opposition cried foul.
A video that was put on Labour's Facebook page on Saturday featured party leader and Prime Minister Jacinda Ardern on visits to the ESR and Ministry of Health's Covid-19 National Contact Tracing Centre.
Ardern's voice narrated over various clips showing her talking to staff.
At one point, the camera focused on director general of health Dr Ashley Bloomfield, who was standing behind Jacinda Ardern. ESR chief executive Peter Lennox was also shown.
Ardern did not mention the Labour Party or the election in the video.
The video featured on the Labour Party's Facebook page, which also scrolls on its website.
It did not go onto any government websites or social media platforms.
The video was taken down after the NZ Herald approached the Prime Minister's office to question it on Saturday.
The claims:
Act leader David Seymour and National Party campaign chair Gerry Brownlee both questioned whether it was appropriate for the Prime Minister to involve Government agencies and senior public servants in a video on her political party's media platforms in the lead up to an election.
Seymour claimed Ardern was abusing her office and the political neutrality of the public service.
Brownlee has asked the State Services Commissioner to look at it and the Taxpayers' Union has also gone to the State Services Commission.
Brownlee said it was a convention public servants were not drawn into political discussions, particularly during the "regulated period" before an election.
He said the Opposition could not visit Government agencies without the express permission of the minister in charge of them, and it was highly unlikely they would be allowed to video such a visit for their party's websites.
The defence:
Ardern said if it was an advertisement for the Labour Party, it would have been inappropriate to use the footage.
However, she said it was not campaign material or an ad because it did not advertise the Labour Party.
"I have a lot of videos on the Labour page which is just me doing my job."
Ardern's office said the video was simply an update on Covid 19 and the work of the agencies, likening it to the PM's press conferences which are also placed on Labour's Facebook page.
Its use on the Labour Party page was permitted within the rules governing the election period.
However, the video was taken down soon after the Herald questioned it on Saturday.
Ardern said that was "because we don't want to lead to any questions of there being any compromised position of anyone in any way".
The innocent bystander: director general of health Dr Ashley Bloomfield
Bloomfield said he had not known about his part in the video until after it was put up.
He did not want to comment on it beyond saying "the ad went up, and it's now come down".
He said the PM had asked to visit the contact tracing centre, and the Ministry of Health had facilitated that.
No media were there, but he was aware video and photos were being taken and he himself had taken photos for some of the staff "who were thrilled" to see the PM.
The issues:
1. Was the video an election advertisement? If so, was it legal?
2. Was it appropriate to include footage of senior public servants and visits to Government agencies in a video which focused on a leader of a political party and was placed on a political party's platform in the lead-up to the election?
Was it legal? Was it an election advertisement and, if so, was it within the rules?
Ardern is correct to say that there was no mention of the Labour Party or the election in the video, but the definition of an election advertisement is much wider than that.
The Electoral Act defines it as an item that may reasonably be regarded as encouraging or persuading voters to vote or not vote for a candidate, party or a type of candidate or party the advertisement describes by referencing views they do or do not hold.
It is not clear-cut. Something can be an election ad without even mentioning a political party or politician.
The Electoral Commission's advice to parties states:
"An advertisement's encouragement or persuasion can be direct or indirect. Whether an advertisement encourages or persuades voters depends on its: content, style, apparent purpose, factual context, and effect as a whole."
Electoral law expert Graeme Edgeler said he did not consider the video met the threshold to be an election advertisement.
"I don't completely rule it out, and for safety I would treat it as one until the Electoral Commission gave a ruling on whether it is isn't or it is.
"But it's nothing to do with the election, it really isn't."
While some parts of the video gave him pause for thought – such as references to the "resurgence plan" which could point to policy issues - on balance it seemed to be "the Prime Minister talking about prime ministerial things".
Ardern's office has likened it to the footage of Ardern's press conferences on Covid-19 which are also routinely placed on Labour pages.
A spokeswoman for the Electoral Commission said they had not seen the video in question and so could not say if they considered it to be an election advertisement.
However, she said a party's entire website or social media account was treated as an election advertisement if any part of it could be seen as encouraging or persuading voters to vote or not vote for a party or candidate.
"Both the Labour Party website and Facebook page have promoter statements that meet the requirements of the Electoral Act."
The inclusion of the promoter statement is not in itself evidence that Labour considered it an election advertisement: political parties have long taken a "better safe than sorry" approach by placing the statement on most material they produce.
Was it appropriate?
The other question is whether the involvement of Government agencies and public servants was appropriate, especially during the regulated period of an election.
Ardern has argued that her work as a Prime Minister often involved government agencies.
However, a different standard applies during the election period.
That is why earlier this year Bloomfield started holding press conferences separately from the PM -until the second outbreak of Covid-19 happened.
Each election period the State Services Department issues advice to public servants on the do's and don'ts for an election campaign.
It emphasises the need to maintain political neutrality and be careful when handling matters such as advertising of government programmes.
There is also a section on managing MPs' visits to Government agencies: "The agency's chief executive must consider any risks to political neutrality. They can decline a request if the proposed visit is likely to breach political neutrality or if a request is otherwise considered inappropriate for the agency."
On the issue of the video, a statement from SSC chief executive Peter Hughes said Brownlee had written to him to ask for an opinion. He was still deciding whether to look into it.
"It is not appropriate for me to comment further until I have considered his request."
Brownlee said there was nothing wrong with the PM visiting those agencies to thank staff, or with Bloomfield accompanying her.
"What is unusual is to have the events videoed and for those videos to make their way onto a party website, and to include two chief executives in that video as if they were party to the positions the Labour Party will be putting in the election campaign."
"If it was for public information it should have been on a Government website – not on the Labour Party website."
Edgeler said while it was not illegal to include Bloomfield in such items "it is probably unwise".
"Governments, and ministers, should be careful before politicising the public service. And they have not been careful enough.
"If Bloomfield gives public statements, people should be able to trust him whether they like Labour or not because he is the head doctor.
"So you run the risk. It's not a legal risk – it is appropriateness rather than legality.
"They probably should have been more careful in this case."
The verdict:
On balance, the video itself does not seem to be an election advertisement.
There is no mention of the election or Ardern's campaign platform beyond reference to Government actions that are already underway. It is legitimate for a Prime Minister to visit and speak to staff at the agencies involved in her capacity as Prime Minister.
The danger lies in the proximity of the election, and the fact the video only screened on the Labour Party page. That page carries the livery of the political party rather than the government, and also contains campaign content.
If it was an election advertisement, the video would be within the rules of the Electoral Act because it carried Ardern's "promoter statement" setting out who was behind it.
However, Labour would have to include it in its expenses cap if the Electoral Commission considered it an election advertisement because it aired after the start of the regulated period on August 18.
There is a much stronger case to argue that it was inappropriate to involve senior public servants and government agencies in the video that was put together by Ardern's office, which primarily showcased Ardern, and which was only placed on a political party's media platforms.
Labour effectively recognised that by removing the video.
They allege the Crown ignored Treaty obligations by not engaging with them.