Minor parties launch judicial review against Electoral Commission, Sue Grey alleges advertising allocations are ‘unfair’

Brian and Hannah Tamaki and Sue Grey are challenging the Electoral Commission’s advertising allocations. Photo / NZME

A consortium of New Zealand’s smallest political parties says they won’t be able to fairly contest the upcoming general election after the Electoral Commission “unfairly” allocated advertising spending.

The four parties, Outdoors and Freedom, Freedoms NZ, Vision NZ and the Aotearoa Legalise Cannabis Party (ALCP), jointly appeared before the High Court at Wellington today, seeking a judicial review of the allocation decision.

The political foursome are represented by lawyer Sue Grey, who also doubles as the co-leader of both the Outdoors and Freedom party and Freedoms NZ.

Outdoors and Freedom and Vision NZ are both component parties of Freedoms NZ - the “umbrella party” that will contest the election with a party list comprised of component party candidates. The ALCP is not a component party, but agrees with the court challenge so has joined in.

Brian Tamaki, the co-leader of Freedoms NZ and his wife Hannah, the leader of Vision NZ, were in court for the hearing, heard by Justice Rebecca Ellis.

Under the Broadcasting Act, each registered party is entitled to a taxpayer-funded allocation for TV and radio advertising during the campaigning period. This broadcasting allocation is the ceiling for parties - they cannot spend any more.

Parliament set aside $4.14 million for the 2023 election, which the Electoral Commission divides among parties based on criteria that include their previous election result, membership and current polling.

The parties’ case has two legs - the unfairness of the allocations generally, and how the allocations work for parties that have joined under an “umbrella party” to contest the election.

Grey told the court that providing Labour and National over $1m each while the smallest of “the minors” will receive just over $66,000 is unfair.

“The largest party has 20 times the allocation of the smallest parties. A fairer allocation would be three or five times,” Grey said.

Evidence was provided showing the costs of television advertisements during certain times. Grey referred to the cost of an ad during the 6pm news on TVNZ 1, saying the current allocations would allow her party just two 30-second advertisements.

By the time you share the party’s name and an authorisation statement, “you basically can’t say anything at all,” Grey said.

In practice, Grey said, this prevents the parties from adequately explaining their policies to voters.

Justice Ellis raised the prospect of alternatives such as social media, but Grey said this isn’t available to every party, making TV and radio ads more important. She said her party was previously banned from Facebook, and the ALCP is unable to advertise on most platforms as the name of the party contains the word “cannabis”.

The central point of the claim surrounded the criteria for how the allocations are calculated. As outlined in the act, this criteria takes into account previous results at general and byelections but also mainstream polling and the social media following of each party.

Grey alleged the commission gave “considerable regard” to the 2020 election result, but there was no evidence they took other factors into consideration, such as Grey’s personal result in the 2020 Tauranga byelection where she won almost 5 per cent of all votes.

“It’s a backward-looking approach, entrenching the results of the last election,” Grey said.

Acting for the Electoral Commission, lawyer Abigail Lawson rejected this. She said the commission was required to consider allocations based on the legislative criteria and did so.

“The commission has not made these decisions based on election results, but all the criteria,” Lawson said.

To prove her point, she provided a graph of what the allocations would look like if they were solely based on previous election results.

“The [criteria] are working together to narrow the gap.”

The second leg of the parties’ claim surrounds how the commission treats “umbrella parties”.

While each registered party is entitled to an allocation, if parties join to form an “umbrella party”, the law allows their allocation to be removed in favour of an allocation for the entire “umbrella party”.

Vision NZ was denied an allocation as a component party of Freedoms NZ. Outdoors and Freedom were initially granted an allocation, but the commission wrote to the party saying it was likely it would be removed, given the party had joined Freedoms NZ.

“The response from the commission was ‘we’ll take your money away’,” Grey told the court.

Grey said this was inconsistent with the law and restricts distinct parties from campaigning for their own causes as part of the umbrella party.

Also acting for the commission, Peter Gunn said the Broadcasting Act explicitly states that allocations can be made to a group of “related parties”. If a party receives an allocation as part of a grouping, it is not entitled to its own distinct allocation.

“This is a highly factual assessment which is a matter for the commission to assess.”

The Labour Party was also represented at the hearing but did not give oral submissions.

Justice Ellis reserved her decision.

Ethan Griffiths covers crime and justice stories nationwide for Open Justice. He joined NZME in 2020, previously working as a regional reporter in Whanganui and South Taranaki.