Electoral (Finance Reform and Advance Voting) Amendment Act 2010

7 New Part 6AA inserted
  • The following Part is inserted after section 204:

    Part 6AA
    Election advertising

    Interpretation provisions

    204A Interpretation
    • In this Part, unless the context otherwise requires,—

      address means—

      • (a) in relation to an individual,—

        • (i) the full street address of the place where that individual usually lives; or

        • (ii) the full street address of any other place where that individual can usually be contacted between the hours of 9 am and 5 pm on any working day:

      • (b) in relation to a body corporate or unincorporated,—

        • (i) the full street address of the body's principal place of business; or

        • (ii) the full street address of the body's head office

      contact details for a person means that person's—

      • (a) address; and

      • (b) telephone numbers; and

      • (c) email address (if any)

      election advertisement has the meaning given to it by section 3A

      promoter means a person who initiates or instigates an election advertisement that—

      • (a) is published; or

      • (b) is to be published

      register means the register of registered promoters established and maintained under section 204R

      registered promoter

      • (a) means a promoter who is registered under section 204N; and

      • (b) includes a promoter who at any time in the regulated period has been registered under section 204N

      unregistered promoter means a promoter who is not—

      • (a) a registered promoter; or

      • (b) a constituency candidate; or

      • (c) a list candidate; or

      • (d) a party; or

      • (e) a person involved in the administration of—

        • (i) the affairs of a candidate in relation to the candidate's election campaign; or

        • (ii) the affairs of a party.

    Subpart 1General rules governing election advertisements

    204B Persons who may promote election advertisements
    • (1) A person is entitled to promote an election advertisement if the person is—

      • (a) a party secretary:

      • (b) a candidate:

      • (c) a registered promoter:

      • (d) an unregistered promoter who does not incur advertising expenses exceeding $12,000 (or such other amount as is prescribed by the Governor-General by Order in Council under section 266A) in relation to election advertisements published during the regulated period.

      (2) The amount in subsection (1)(d) is inclusive of goods and services tax.

      (3) Every person who wilfully promotes an election advertisement without being entitled to do so under subsection (1) is guilty of an illegal practice.

      Compare: 2007 No 111 s 63(3), (4)

    204C Apportionment of advertising expenses for publication of election advertisement promoted by unregistered promoter both before and during regulated period
    • (1) This section applies if an election advertisement that is promoted by an unregistered promoter—

      • (a) is published both before the commencement of the regulated period and during the regulated period; or

      • (b) is published before the commencement of the regulated period and continues to be published during the regulated period.

      (2) If this section applies,—

      • (a) the election advertisement is deemed to have been published during the regulated period; but

      • (b) the advertising expenses for the publication of the election advertisement must be apportioned so that only a fair proportion of the expenses is attributed to being incurred during the regulated period.

      (3) Only the advertising expenses attributed to being incurred during the regulated period determined in accordance with subsection (2) are advertising expenses for the purposes of section 204B(1)(d).

      Compare: 1993 No 87 ss 205C, 206C (pre-1 January 2011)

    204D Offence to avoid limit set out in section 204B(1)(d)
    • (1) An unregistered promoter may not enter into an agreement, or enter into an arrangement or understanding, with any other person for the purpose of circumventing the maximum amount prescribed in section 204B(1)(d).

      (2) A body corporate or unincorporated may not encourage its members to take any action for the purpose of circumventing the maximum amount prescribed in section 204B(1)(d).

      (3) No person may incorporate or form 2 or more bodies corporate or unincorporated for the purpose of circumventing the maximum amount prescribed in section 204B(1)(d).

      (4) Every person who wilfully contravenes subsection (1), (2), or (3) is guilty of an illegal practice.

      Compare: 2007 No 111 s 64

    204E Obligation to retain records necessary to verify promoter's advertising expenses
    • (1) This section applies to a promoter who—

      • (a) is an unregistered promoter:

      • (b) at any time during the regulated period has been an unregistered promoter.

      (2) A promoter to whom this section applies must take all reasonable steps to retain the records, documents, and accounts that are necessary to enable verification of the advertising expenses incurred as an unregistered promoter in relation to an election advertisement.

      (3) Subsection (2) applies until the close of the day that is 3 years after polling day for the election to which the advertisement relates.

      (4) Every promoter who fails, without reasonable excuse, to comply with subsection (2) commits an offence and is liable on summary conviction to a fine not exceeding $40,000.

    204F Election advertisement to include promoter statement
    • (1) A person may publish or cause or permit to be published an election advertisement only if the advertisement includes a promoter statement.

      (2) A promoter statement referred to in subsection (1) must state the name and address of the promoter of the election advertisement.

      (3) If the promoter is a registered promoter, the name and address of the promoter stated in the promoter statement must be the same name and address of the promoter that appear in the register.

      (4) If the promoter is an unregistered promoter and is a body corporate or unincorporated, the promoter statement must also include the name of a member of the body who is the duly authorised representative of the promoter.

      (5) If the election advertisement is published in a visual form, the promoter statement must be clearly displayed in the advertisement.

      (6) If the election advertisement is published only in an audible form, the promoter statement when published must be no less audible than the other content of the advertisement.

      (7) A person who wilfully contravenes any of subsections (1) to (6) is guilty of an illegal practice.

      Compare: 1993 No 87 s 221(2)(b), (3)(b), (4) (pre-January 2011)

    204G Publication of candidate advertisement promoting candidate
    • (1) A person may publish or cause or permit to be published a candidate advertisement that may reasonably be regarded as encouraging or persuading voters to vote for a constituency candidate only if the publication of the advertisement is authorised in writing by the candidate.

      (2) A person may publish or cause or permit to be published an election advertisement comprising 2 or more candidate advertisements of the kind described in subsection (1) only if the publication of the advertisement is authorised in writing by each of the candidates.

      (3) A person who wilfully contravenes subsection (1) or (2) is guilty of an illegal practice.

      Compare: 1993 No 87 s 221(1)(a), (2)(a), (4), (5) (pre-1 January 2011)

    204H Publication of party advertisement promoting party
    • (1) A person may publish or cause or permit to be published a party advertisement that may reasonably be regarded as encouraging or persuading voters to vote for a party only if the publication of the advertisement is authorised in writing by the party secretary.

      (2) A person who wilfully contravenes subsection (1) is guilty of an illegal practice.

      Compare: 1993 No 87 s 221(1)(b), (3), (4), (5) (pre-1 January 2011)

    204I Electoral Commission to provide advice on application of definition of election advertisement
    • (1) Any person (a requestor) may request the Electoral Commission to provide advice on whether, in the opinion of the Electoral Commission, an advertisement constitutes an election advertisement.

      (2) A request made under subsection (1) must be accompanied by the advertisement in the form required by the Electoral Commission.

      (3) On receipt of a request under subsection (1), the Electoral Commission must, as soon as is reasonably practicable, provide an opinion to the requestor.

      (4) During the period specified in subsection (6), the Electoral Commission must treat the following documents as confidential:

      • (a) an advertisement received under subsection (2):

      • (b) any supporting material made available by the requestor to the Electoral Commission:

      • (c) advice given by the Electoral Commission to a requestor under subsection (3).

      (5) Notwithstanding subsection (4), the Electoral Commission may, upon request or on its own initiative, make available to the New Zealand Police copies of the documents referred to in that subsection to assist with the investigation or prosecution of any offence or suspected offence relating to an election.

      (6) The period specified for the purposes of subsection (4) is, in relation to a document, the period that—

      • (a) begins on the day the Electoral Commission receives the document; and

      • (b) ends on the day after the day for the return of the writ for the election to which the advertisement relates.

      (7) Subsection (4) overrides the Official Information Act 1982 and the Privacy Act 1993.

    204J Duty of Electoral Commission to report suspected offences
    • (1) If the Electoral Commission believes that any person has committed an offence specified in this subpart, the Electoral Commission must report the facts on which that belief is based to the New Zealand Police.

      (2) Subsection (1) does not apply if the Electoral Commission considers that the offence is so inconsequential that there is no public interest in reporting those facts to the New Zealand Police.

    Subpart 2Registered promoters

    204K Promoters eligible to be registered
    • A promoter (including a corporation sole, a body corporate, and an unincorporated body) is eligible to be a registered promoter if the promoter is not—

      • (a) a constituency candidate:

      • (b) a list candidate:

      • (c) a party:

      • (d) an overseas person as defined in section 207K:

      • (e) a person involved in the administration of—

        • (i) the affairs of a candidate in relation to the candidate's election campaign; or

        • (ii) the affairs of a party.

      Compare: 2007 No 111 s 13

    204L Application for registration
    • (1) An application to be a registered promoter must be made to the Electoral Commission and made,—

      • (a) if the promoter is an individual, by that individual; or

      • (b) if the promoter is a company, by a person who is duly authorised by the board of directors to make the application; or

      • (c) if the promoter is not an individual or a company, by the promoter's representative who is duly authorised by the promoter to make the application.

      (2) An application to be a registered promoter must be made in the form required by the Electoral Commission and set out—

      • (a) the name and contact details of—

        • (i) the promoter; and

        • (ii) the person described in subsection (1)(b) or (c) who made the application, if the promoter is not an individual; and

      • (b) the names of the persons occupying a position in the body that is comparable with that of a director of a company, if the promoter is not an individual or a company; and

      • (c) the names of the trustees, if the promoter is a trust.

      (3) An application to be a registered promoter must be accompanied by evidence of the authority to make the application, if the application is made by a person described in subsection (1)(b) or (c).

      Compare: 2007 No 111 s 15(2), (3)(a)

    204M Grounds on which application for registration must be refused
    • The Electoral Commission must refuse an application by a promoter to be registered if—

      • (a) the application does not comply with section 204L; or

      • (b) the Electoral Commission is not satisfied that the promoter is eligible under section 204K to be registered; or

      • (c) the name of the promoter is—

        • (i) indecent or offensive; or

        • (ii) likely to cause confusion or mislead electors.

      Compare: 1993 No 87 s 65(a), (c); 2007 No 111 s 17(1)(a), (c)

    204N Electoral Commission's decision on application
    • (1) If there are no grounds under section 204M to refuse an application by a promoter to be registered, the Electoral Commission must, as soon as is reasonably practicable after receiving the application,—

      • (a) register the promoter; and

      • (b) notify the person who made the application of the date of registration of the promoter.

      (2) If there are grounds under section 204M to refuse an application, the Electoral Commission must, as soon as is reasonably practicable after receiving the application,—

      • (a) refuse the application; and

      • (b) notify the person who made the application of the refusal and the reasons.

      Compare: 2007 No 111 s 18

    204O Obligation to notify Electoral Commission of change in contact details
    • A registered promoter must give written notice to the Electoral Commission of any change in the information provided under section 204L(2) within 10 working days after the change.

      Compare: 2007 No 111 s 19(1)

    204P Cancellation of registration
    • (1) The Electoral Commission must cancel the registration of a promoter if—

      • (a) the Electoral Commission is satisfied that the promoter is not eligible to be registered; or

      • (b) the promoter—

        • (i) requests that it do so; and

        • (ii) has not incurred expenses in relation to election advertisements that exceed the amount specified in section 204B(1)(d).

      (2) If the Electoral Commission cancels the registration of a promoter under subsection (1), the Electoral Commission must, as soon as is reasonably practicable, and in any case not later than 10 working days after the date of the cancellation, give the promoter written notice of—

      • (a) the cancellation; and

      • (b) the reason for the cancellation.

      Compare: 2007 No 111 s 20

    204Q Expiry of registration
    • Unless earlier cancelled under section 204P, a promoter's registration expires on the close of polling day for the next election following the date of the promoter's registration.

    204R Establishment of register
    • (1) The Electoral Commission must establish and maintain a register of registered promoters.

      (2) The Electoral Commission must enter in the register in respect of every registered promoter—

      • (a) the name of the registered promoter; and

      • (b) the address of the registered promoter; and

      • (c) the names of the persons set out in the promoter's application, if any, provided under section 204L(2)(a)(ii), (b), and (c).

      (3) The Electoral Commission may enter in the register any other information that the Electoral Commission considers necessary or desirable for the purposes of the register.

    204S Purposes of register
    • The purposes of the register are—

      • (a) to enable members of the public to ascertain—

        • (i) whether a person is a registered promoter and, if so, the address of that person; and

        • (ii) whether an election advertisement is promoted by a registered promoter; and

      • (b) to assist with the enforcement of the provisions of this Part.

    204T Form of register
    • The register may be kept—

      • (a) as an electronic register (for example, on the Electoral Commission's Internet site); or

      • (b) in any other manner that the Electoral Commission thinks fit.

    204U Alterations to register
    • The Electoral Commission may at any time make any amendments to the register that are necessary to—

      • (a) reflect any changes in the information referred to in section 204O; or

      • (b) correct any error or omission on the part of the Electoral Commission or any person to whom the Electoral Commission has delegated its functions, duties, or powers.

    204V Register to be public
    • The Electoral Commission must—

      • (a) make the register available for public inspection at its office during ordinary office hours, without fee; and

      • (b) supply to a person copies of all or part of the register on request, subject to the payment of any charges that may be made under the Official Information Act 1982.

    204W Search of register
    • A person may search the register for a purpose set out in section 204S.

    204X When search constitutes interference with privacy of individual
    • A search of the register for personal information that has not been carried out for a purpose specified in section 204S constitutes an action that is an interference with the privacy of an individual under section 66 of the Privacy Act 1993.