Brian and Hannah Tamaki and Sue Grey have failed in their challenge of the Electoral Commission’s advertising allocations. Photo / NZME
Brian and Hannah Tamaki and Sue Grey have failed in their challenge of the Electoral Commission’s advertising allocations. Photo / NZME
The High Court has dismissed a claim from a group of small political parties that its election broadcasting allocations are unfair.
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 last month, seeking a judicial review of the allocation decision.
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, social media following and current polling. The total pot of money is the same as the 2020 election.
The parties’ case had 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.
Sue Grey, the co-leader of the Outdoors and Freedom Party, also doubled as the consortium’s counsel. She told the court that providing Labour and National over $1m each with the smallest of “the minors” set to receive just over $66,000 was unfair.
“The largest party has 20 times the allocation of the smallest parties. A fairer allocation would be three or five times,” Grey said in court. She alleged the allocations effectively entrench the previous elections’ results.
In a judgment today, Justice Rebecca Ellis disagreed.
She said it was an “artefact of history” that existing parties had always been favoured. The Broadcasting Act predates the introduction of New Zealand’s MMP electoral system.
Despite this, the 2023 allocations “did not simply mirror the results of the last general election.”
A graph contained in the judgment showed if based solely on party vote results, Labour would be entitled to an allocation $2.07 million, when in reality the commission allocated the party $1.24 million.
Per the calculations, NZ Outdoors and Freedom party itself would be entitled to just $4560, whereas the allocation granted the party $66,332.
Justice Ellis said it was clear the commission had considered factors such as social media following and byelection results - although these considerations vary in their weight which is a matter for the commission. “It is impossible to say there has been an error in that regard.”
The hearing was held in the High Court at Wellington. Photo / NZME
The cost of television advertising was also considered. A 30-second slot on TVNZ1 during the 6.10pm ad-break in October would cost more than $26,000.
Justice Ellis accepted Grey’s point that her party’s allocation would allow just two ads at this time - but also noted that her allocation would allow 15 ads during The Chase just minutes earlier.
When it came to the umbrella arrangement, Justice Ellis ruled the Broadcasting Act is clear in stating: “an allocation may not be made to an individual party if that party is to receive an allocation as part of a group of related parties.”
As it stands, Vision NZ has been denied an allocation due to it being a component party of Freedoms NZ - an umbrella party co-led by Brian Tamaki and Sue Grey.
Outdoors and Freedom, of which Sue Grey also co-leads, is a component party too, but the commission has signalled it will also be denied an allocation due to their inclusion under the umbrella.
“Section 79(3) is clear enough in its terms, and even clearer when read in context, and in light of its purpose.”
Both claims were dismissed. Justice Ellis ordered costs to lie where they fall.
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.
