If the NZ Herald wants its editorials to be taken seriously, it should stop using them to mislead its readers.

While I'm waiting on my copy of Nicky Hager's Dirty Tricks to arrive so that I can join the interweb's great topic de jour, a quick cut-and-paste response to today's NZ Herald's editorial. The tl;dr is - I agree with the sentiment, but that is no excuse for getting basic facts completely and utterly wrong. And in particular, riding a hobbyhorse against electoral finance legislation when the law at fault lies in a completely different enactment is just inexcusable.

Anyway, here we go ...

How absurd that radio programmers cannot play a song that mocks John Key because it may breach the Electoral Act, and how ironic that the singer has been gagged by an act of the previous Labour Government. Darren "Guitar" Watson's song contains a lyric that, in the words of the Act, "appears to encourage voters to vote or not to vote for a political party or candidate".

True that it is absurd that radio programmers have been told that they can't do this. That's what I said a couple of days ago. But the Herald has made a major error here. It's identified the Electoral Act 1993 (and, in particular, amendments made to this in 2010 by all the parties in Parliament) as being the problem, when it really is the Broadcasting Act 1989 that is to blame. So the "previous Labour Government" that is to blame is the Fourth one, not the Fifth (which isn't really to blame anyway).

News bulletins on radio and television are exempt from the restriction on "third party advertising" and no doubt by now most people will have heard Mr Watson's voice and seen an accompanying video that its creators consider more "subversive" than the song. But it is simply silly that the song and video cannot be given airtime in their own right to enliven the election campaign.

True, but again the editorial writer is talking about the wrong law! Radio and TV can treat Mr Watson's song in this way becasue of the exemption in s.70(3) of the Broadcasting Act, which permits the broadcast of an election programme "in relation to an election, of news or of comments or of current affairs programmes". The reason why everyone else can view/hear it on the internet is that the Broadcasting Act simply doesn't apply to that medium and it isn't clear whether it is an "election advertisement" (thus requiring a promoter's statement). So there's (probably) no problem in posting/hosting the video and song on your webpage.

Helen Clark's overreaction to the Exclusive Brethren seven years ago has created a regulatory minefield for anyone outside a political party who wants to inject some argument or entertainment into a New Zealand election.

National shares the blame. It reviewed the advertising rules when it came to office but made only minor alterations to them.

Of course, the Herald has been editorialising against these sorts of laws since 2007, when it also published a couple of editorials that the Press Council found omitted "significant detail [and so] led to inaccurate statements being published". Apparently this paper's hostility to those laws means that it hasn't gotten any better at accurately describing their effect. Although, perhaps the Herald might note the Press Council's closing sentence in the previous ruling: " a prompt correction given reasonable prominence, would [be] an acceptable acknowledgement of its error"?

Perhaps National will be big enough to take another look at them if it is returned at the election. It could take its cue from the Prime Minister, who had seen the video this week and took it in good spirit. "As a parody it was okay," he said. "It's certainly a lot more professional than the Dotcom video of people screaming and chanting at me."

True. So let's start a campaign to amend the Broadcasting Act! Which would mean National having to give up the $1 million or so that it'll get given in public money to run election advertisements, as well as allowing other parties to spend more on their own ads. So ... not going to happen, then?

Election campaigns are not just for registered political parties and people standing for election. They are a forum for everyone who has the urge to say something about events and the ability to say it. Ability does not simply mean wealth as the Clark Government supposed, it also means creative ability and commercial or organisational backing. Mr Watson is not the first National critic to be hoist by Labour's petard. Just last month a number of environmental groups were warned by the Electoral Commission that a campaign aimed at forcing all parties to address climate change could be against the law.

Yes. The Herald is right about the Climate Voter issue. I posted on that here.

The commission must be finding this part of its task particularly troubling, for one of its other tasks is to encourage greater electoral participation, particularly among the young. Music and video and independent promotions of issues such as climate change probably have much more resonance for young people than the speeches and billboards of people running for election.

Artists, actors, musicians, sporting figures and other role models should all be encouraged to show their interest in an election and share their voting intention if they dare. It is a big step for them to venture into political controversy as Lucy Lawless frequently does.

People in showbusiness face enough risk to their reputation and popularity without putting legal pitfalls in their way.


The act requires anyone taking out advertising - or publishing a sound or video recording it turns out - to register with the Electoral Commission as a third party and adhere to the spending restrictions and accounting requirements set down. Industry associations and trade unions may be accustomed to this sort of red tape but musicians and many others who might be moved to put a view in front of the voters will find the rules discouraging.

Seriously? No. Just no. This is just flat out, completely wrong. Under the Electoral Act, you only need to register with the Electoral Commission as a "registered promoter" if you are going to spend more than $12,300 on "election advertisments" in the 3 months between June 20 and September 20. If you spend less than that, you don't need to register. If you spend more than that outside of the 3 month window, you don't need to register. 

It's not as if it is hard to discover that these are the rules. The Electoral Commission has a section on its website that tells you so, and publishes a more detailed handbook on the issue. If the writer of this editorial is unable to conduct this most basic research, why on earth are they entrusted with the task of writing on the topic?

Excessive regulation usually reveals itself in perverse consequences. Rules written in fear of financial influence, were not intended to stifle politically loaded music and satire. Nobody foresaw that they would.

 As I said in my last post, the Broadcasting Act 1989 is outmoded and needs an overhaul. But to collapse the Broadcasting Act into the Electoral Act is sloppy, sloppy analysis and risks seriously misleading the reader. 

The law has become a laugh, which is perhaps the only unregistered political humour it will permit.

Nice sign off. Pity it's wrong.

Comments (4)

by Kat on August 14, 2014

Gosh Andrew, now why would the Herald knowingly want to "mislead its readers"?

What on earth would it have to gain from "misleading" its readers!!

Hang on, someones just left a copy of 'Dirty Politics' on my table!!


by Steven Price on August 14, 2014
Steven Price

What's even more astonishing is that the Press Council ruling against the Herald that you mention was for exactly the same mistake you've identified here (ie about the need to register and adhere to restrictive regulation before you can involve yourself in politics as a third party).

by Steve F on August 16, 2014
Steve F

Andrew: ".......While I'm waiting on my copy of Nicky Hager's Dirty Tricks to arrive so that I can join the interweb's great topic de jour,

wait no longer....it's in the Kindle store.You can even read the first chapter for free before committing a hard earned $21 to join the interweb..Unless it's fizzed out I expect to be scrolling down the page to infinity with your blog, by Sunday evening

by Andrew Geddis on August 16, 2014
Andrew Geddis


Ta! Dead tree version arrived with me yesterday. Horrible. Just horrible.

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