Editorial: Election law on ads is an excessive gag

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It is only a matter of time before bad law comes back to bite those who made it. Provisions of the Electoral Act regulating independent advertising in election campaigns were passed by the previous Labour Government with the support of the Green Party, and only slightly altered by the present Government. Now, seven years after its enactment, the electoral finance law is frustrating environmental groups that want to make climate change an election issue.

Six of them, including Greenpeace, Forest and Bird, Oxfam and WWF New Zealand, started a campaign called "Climate Voter" last month, aiming to force all parties to address climate change before the election. Whatever view may be taken of their cause, no democrat would deny them the right to put it in front of voters. But if they do, the Electoral Commission has ruled, their material will be deemed election advertising and subject to a discouraging array of statutory registration and accounting requirements.

The rules are less restrictive since National rewrote them, but they remain bureaucratic, which makes them onerous and off-putting for people who are not routinely organised for the purpose. The Climate Voter campaign is aggrieved to find itself subject to the act and has decided to challenge the commission's ruling in the High Court.

"This is about freedom of speech," said Steve Abel of Greenpeace. "There is a very real risk that if this law goes untested, many advocacy and civil society groups in New Zealand could be gagged. Some may even be forced to take down entire websites."

He is echoing the warnings this newspaper and other critics expressed seven years ago. It is a pity green groups did not speak out at that time.

They went along with the Clark Government's overreaction to pamphlets circulated before the 2005 election by a small religious sect, the Exclusive Brethren, whose material had been particularly harsh on the Green Party.

Now, the environmentalists want the courts to draw a distinction between that sort of campaign and theirs. "We think the law was clearly not intended to capture non-partisan, civil society groups," says Mr Abel.

He may consider his campaign "non-partisan" but the commission, rightly, does not. The act the commission must enforce defines election advertising as material that may reasonably be regarded as encouraging voters to vote or not vote for a type of candidate or party described by reference to views or positions, whether or not the name of the candidate or party is stated. Clearly, material concerned with climate change would favour parties that share the groups' concern and place it high in their priorities.

The group's intention may be to force all parties to take its issue more seriously, but campaigners of every social and moral persuasion would say the same. Those that expressly endorse or oppose a particular party are likely to be less effective than those that are more subtle.

The only reason to regulate such advertising is to prevent it being used to circumvent financial restrictions on party advertising in an election period.

That purpose could be met if the law applied only to overt endorsements. In seeking to regulate all paid advertising of political issues in the three months before an election, the law remains too broad. Its registration and financial reporting requirements are too onerous for all but the most organised pressure groups, such as trade unions, and discourage others who could afford to promote their interests or concerns.

Environmental advocates seem to be under the impression the law applied only to the rich and the conservative. The courts are unlikely to see it that way.

The red tape has wide effect. It is an excessive electoral gag.