The Alliance Political Party, of Christchurch v Electoral Commission of Wellington HC Wellington CIV 2008-409-1253
[2008] NZHC 2577
•18 September 2008
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CIV 2008-409-1253
UNDER the Judicature Amendment Act 1982 and
Part 6 of the Broadcasting Act 1989
IN THE MATTER OF Decisions under Sections 73(1) and 74A of the Broadcasting Act 1989
BETWEEN THE ALLIANCE, POLITICAL PARTY, OF CHRISTCHURCH
Plaintiff
ANDELECTORAL COMMISSION OF WELLINGTON
Defendant
Hearing: 15 September 2008
Counsel: P N Allan, for Plaintiff
P J Gunn and D Brookes for Defendant
M J Kidd for Family Party
P T Kiely and D J Erickson for New Zealand National Party
Judgment: 18 September 2008 at 4pm
In accordance with r540(4) I direct the Registrar to endorse this judgment with a delivery time of 4pm on the 18th day of September 2008.
RESERVED JUDGMENT OF MACKENZIE J
BACKGROUND
(a) Introduction
[1] The Electoral Commission is responsible for allocating to political parties broadcasting time on radio and television for opening and closing addresses in the
ALLIANCE V ELECTORAL COMMISSION HC WN CIV 2008-409-1253 18 September 2008
general election campaign. It is also responsible for allocating funds appropriated by parliament for the broadcasting of election programmes by political parties. It has made those allocations. The Alliance, a registered political party, challenges aspects of those allocations, by this application for judicial review.
[2] All registered political parties were given an opportunity to participate in these proceedings. In the end, only two other parties elected to be heard, the New Zealand National Party and the Family Party. The Commission, as well as filing an affidavit from the Chief Executive describing the relevant processes, adopted the helpful approach (as it has in a number of other proceedings before me relating to electoral issues), of instructing counsel to advance submissions in support of its decision.
(b) The Statutory Scheme
[3] Part 6 of the Broadcasting Act 1989 (the Act) deals with the broadcasting of parliamentary election programmes on television and radio. It provides for time to be made available for the broadcast of opening and closing addresses by political parties at the start and end of the general election campaign. It also provides for public money to be appropriated by Parliament for the cost of producing and broadcasting election programmes by political parties. It is a function of the Commission to allocate to the political parties contesting the general election that time and money. The broadcasting of election programmes outside those parameters is prohibited.
[4] The total time available for the broadcasting of opening and closing addresses is fixed by Television New Zealand Limited (TVNZ) and Radio New Zealand (RNZ) respectively. Under s 71 of the Act, each of them must provide time, free of charge, for broadcasting the opening addresses and closing addresses of political parties. Under s 71A, the Commission must require TVNZ and RNZ to supply a statement of the amount of time that each of them will provide for this purpose. Under s 73 the Commission must allocate to political parties the time made available. For the 2008 general election campaign, TVNZ and RNZ each made available 72 minutes for opening addresses and 30 minutes for closing addresses.
[5] The Act also provides, in s 74 that the amount of public money which is to be made available in respect of the costs of broadcasting election programmes must be notified to the Commission by the Minister of Justice. For the 2008 election, the amount appropriated was $2,855,000 excluding GST. ($3,211,875 GST inclusive.) Under s 74A, the Commission must decide the allocation of that money to political parties.
(c) The Commission’s decision
[6] The Commission, after undertaking the necessary consultative process with political parties, made its initial allocation decision on 19 May 2008. It made its allocations, both of time and money, to parties in four bands. The first three bands comprised all parties represented in Parliament. The fourth band, which includes the Alliance and the Family Party, comprised all registered political parties not currently represented in Parliament. Parties in that band were each allocated one minute for an opening address, with no time allocated for a closing address. They were also each allocated $10,000, plus a production package for the opening address.
(d) The challenges to the decision
[7] The application for judicial review challenges three aspects of the
Commission’s decision:
(a) The decision not to allocate time for a closing address (the closing decision);
(b)The decision to allocate $10,000 from the amount appropriated for broadcasting election advertising (the advertising decision); and
(c) The decision relating to the production package (the production decision)
[8] The Alliance alleges that the closing decision and the production decision are illegal and of no effect; that the advertising decision is affected by a failure to take
into account relevant considerations and by taking into account irrelevant considerations; and that the closing decision and the advertising decision were unreasonable in the Wednesbury sense.
THE ISSUES AND DISCUSSION
(a) The closing decision
[9] The total time allocated to parties in the first three groups (the parliamentary parties) for opening addresses was 60 minutes of the 72 minutes available. Each of the parties in the fourth group (the non parliamentary parties) was allocated a one minute opening address. The 30 minutes available for closing addresses was all allocated to the parliamentary parties. The non parliamentary parties received no allocation. The essence of the Alliance contention is that, in failing to allocate any time to the non parliamentary parties for a closing address, the Commission erred in law.
[10] The relevant provision is s 73(1) of the Act. That provides:
[73] Allocation of time to political parties
(1)In respect of each election period, the Electoral Commission must allocate to political parties, in such proportions as the Electoral Commission considers appropriate, the time that TVNZ and RNZ have made available for opening addresses and closing addresses in accordance with section 71A.
[11] Mr Allan for the Alliance submits that the Commission must allocate each qualifying party both an opening and a closing address of whatever length and that, in failing to do so, the Commission has fallen in to error. He submits that it requires the allocation to each registered political party both an opening and a closing address. Mr Gunn for the Commission submits that s 73(1) does not require a closing address to be allocated and that the wording of that section, which requires an allocation of time to political parties “in such proportions as the Electoral Commission considers appropriate”, contemplates a nil allocation.
[12] The question whether a nil allocation is possible must first be considered more broadly, in respect of the total resources (time and money) which are allocated by the Commission. Could the Commission exercise its powers of allocation in such a way that a party received no allocation under either s 73 or s 74A? Access to the broadcasting media for conveying political messages is an essential feature of a modern democracy. Part 6 excludes access to broadcasting, whether radio or television, for election programmes except by means of the allocation process. Accordingly, a party which received no allocation under that process would effectively be excluded from radio and television in seeking support from the electorate. I consider that it would be contrary to the purposes of Part 6 of the Act, read in the light of the New Zealand Bill of Rights Act 1990, in particular s 14, for no allocation of broadcasting time, or of funding from the broadcasting allocation, to be made to a political party. Accordingly, in my view the reference to proportions in s 73(1), and to allocation in s 74A, do not contemplate that there may be no allocation, in respect of the resources as a whole, to a particular political party. The function of the Commission is to allocate scarce resources among political parties. It is not a part of that function to exclude any political party from those resources. The scheme of Part 6 is such that every party must receive some allocation of time or money.
[13] The next question is whether that general proposition that every party must receive some allocation, applies separately to the allocation of time and money. I incline to the view that the scheme of the allocation provisions is such that some allocation to each and every political party is required under s 73 and s 74A separately. That is to say, there must be for each political party an allocation both of time under s 73 and of money under s 74A. For present purposes, I assume, but do not decide, that that is so. On that assumption, the reference to proportions in s 73 cannot lead to a nil allocation of time.
[14] That conclusion, if it is correct, does not answer the question in issue here, which is whether a separate allocation of time is required for both an opening address and a closing address. I do not consider that s 73 requires that. Section 73 contemplates a single allocation process in respect of time. The time to be allocated has four components: opening and closing addresses, on television and radio
respectively. But the allocation is undertaken as a single process. What is to be allocated is “the time that TVNZ and RNZ have made available for opening addresses and closing addresses in accordance with s 71A”. The words “in such proportions as the Electoral Commission consider appropriate” in my view apply to the totality of the phrase which follows, not to the four separate individual components which are included within that phrase. I consider that the Commission, in assessing the proportions of the total time made available in this way, may lawfully make no allocation to a party in respect of one or more components, so long as some allocation is made in respect of some other component.
[15] For these reasons, I consider that the Commission has not erred in law in failing to allocate a closing address on either television or radio to any of the non parliamentary parties, because an allocation has been made in respect of opening addresses on both television and radio for those parties. The amount of the allocation is a matter for the Commission. The function of the Court is limited to ensuring that the Commission has acted correctly in law in making the allocation. The conclusion that the Commission has not erred in law in making no allocation of time for closing addresses on either radio or television to the non parliamentary parties necessarily leads to the result that this aspect of the challenge must fail.
(b) The advertising decision
[16] The second aspect of the applicant’s claim relates to the quantum of the allocation of money to the non parliamentary parties under s 74A. Section 74A relevantly provides:
(1)The Electoral Commission shall, in respect of each election period, decide the allocation to political parties of the amount of any money appropriated by Parliament, or deemed to have been appropriated by Parliament, for the purpose of enabling political parties to meet all or part of the costs of broadcasting election programmes during that election period.
(2) The decision made under subsection (1) of this section—
(a) Shall set out the allocations (which shall be in such proportions as the Electoral Commission thinks fit); and
(b) May include conditions concerning the manner in which any political party is to expend its allocation.
[17] For allocation purposes, the same four groupings were used by the Commission. The allocation to each of the non parliamentary parties was $10,000 plus a sum of up to $7,000 in value for production costs for the opening address on TVNZ. Two aspects of that allocation are challenged.
(a) The quantum of the application; and
(b) The tying of the $7,000 allocation to production costs under the
TVNZ package.
[18] I deal in this section with the first of those, in relation to the $10,000 figure. [19] The criteria which the Commission must take into account in the allocation of
both time and money to political parties are set out in 75(2). Those particularly relevant here are paragraphs (e) and (f):
(e)Any other indications of public support for that political party such as the results of public opinion polls and the number of persons who are members of that political party; and
(f)The need to provide a fair opportunity for each political party to which subsection (1) of this section applies to convey its policies to the public by the broadcasting of election programmes on television.
[20] Counsel for the Alliance submits that the Commission erred in that in its allocation decision it noted “the minimum amount allocated reflects the cost of a basic radio advertising campaign for a month”. Counsel submits that the Commission erred:
(a) By failing to take into account the relevant consideration in s 75(2)(f), namely the need to provide a fair opportunity to convey policies by the broadcasting of election programmes on television; and
(b)By taking into account an irrelevant consideration, namely the cost of a basic radio advertising campaign.
[21] Mr Kidd, for the Family Party, further contends that the Commission erred in failing to accord appropriate weight to opinion polls. He notes that in its decision the Commission had said: “As opinion poll results are becoming less reliable as an indication of the views of the whole population, they were given a lesser weighting than has been the case in previous allocation decisions”.
[22] On these aspects of the challenge, it is necessary to have proper regard to the role of the Commission in the allocation process. The weight to be given to particular considerations which are, as a matter of law, relevant, is for the Commission. The intensely political content of the allocation process makes it important that the supervisory role of this Court by way of judicial review should be strictly confined within appropriate administrative law boundaries. It is for the Court to determine whether a particular consideration is, or is not, as a matter of law, relevant. The weight, if any, to be attached to a relevant consideration is a matter for the Commission.
[23] I do not consider that the Commission’s reference to the cost of a radio advertising campaign demonstrates that the Commission has failed to have proper regard to s 75(2)(f), or that it has had regard to an irrelevant consideration. The way in which the $10,000 allocation is spent is not tied to radio advertising. The evidence as to the material available to the Commission on the cost of television advertising indicates that it would be feasible to use part or all of that sum on television, if that is how a party chose to spend its allocation. Section 75(2)(f) must be applied having regard to the necessarily limited financial resources which the Commission has available for allocation. Section 75(2)(f) cannot properly be interpreted as requiring the Commission to make available to every political party sufficient resources to fund a substantial television advertising campaign. Furthermore, I consider that, in having regard to the s 75(2)(f), the Commission may properly take into account the totality of the opportunity for each political party to convey its policies on television under both s 73 and s 74A. That is to say, in making the allocation under s 74A of money, the Commission may take into account, under s 75(2)(f), the opportunity for access to television time provided under s 73. Accordingly, I do not consider that any error by the Commission in relation to s 75(2)(f) has been made out.
[24] As to the contention by the Family Party that insufficient weight has been given to poll results, it is clear that poll results are a relevant consideration under s 75(2)(e). The weight to be accorded to them is a matter for the Commission, not for this Court. The Commission’s decision clearly indicates that poll results have been taken into account. The Commission’s decision makes it clear that it has taken into account three key criteria for the measurement of current support for a party, namely number of votes at the last election, number of MPs at the dissolution of parliament and other indications of support, in particular opinion poll results. The Commission expressly recognised that the allocation is not an exact arithmetic reflection of any of those three criteria.
[25] The evidence makes it clear that the non parliamentary parties have received a greater allocation than they would receive from a purely arithmetic application of poll results to all parties. The Commission notes that it decided to allocate a minimum to all eligible parties, and that in effect involved a cross subsidisation from the two largest parties to the smaller parties. The Family Party complaint in respect of the weighting given to poll results must necessarily be not that the non parliamentary parties, considered as a group, have been disadvantaged, but that poll results might have been used to make distinctions between parties within that group. It is clear from the Commission’s decision that it has sought to avoid making fine distinctions between parties whose situation in terms of electoral support might be viewed as broadly similar. Such reasoning clearly underpins the four groupings which the Commission has arrived at. It is accordingly essential to the challenge advanced by the Family Party, that it demonstrate not only that the Commission ought to have placed more weight on poll results, but that the effect of placing more weight on those poll results should have resulted in a subdivision within the non parliamentary group, between those with greater support and those with lesser support in the polls. All of those considerations were matters for the Commission. The appropriate grouping of the parties was a matter for the Commission to determine and this Court cannot interfere with that decision, unless an error of law can be demonstrated. No such error of law has been demonstrated here.
[26] For these reasons, the challenge to the Commission’s decision to allocate
$10,000 to each of the non parliamentary parties must also fail.
(c) The production decision
[27] The final aspect of the applicant’s claim relates to the allowance for production costs for the preparation of the opening address, for each of the non parliamentary parties. In 2005, the Commission arranged a “production package” with the assistance of TVNZ. The production package was made available to the non parliamentary parties in the 2005 election, and is also to be made available for the 2008 election. The reasons for the creation of the package in 2005 were to meet TVNZ concerns about the poor quality of some of the tapes submitted for playing as opening addresses and the late arrival of tapes; to provide a superior package through economies of scale by filming addresses for several parties in the course of one day with savings over separate filming sessions; to assist parties who might lack knowledge of how to access the professional crew needed to produce a quality film; and to assist parties in making more effective and better use of their allocated time by producing addresses of a higher broadcasting quality. The production package involves the Commission paying a fee to TVNZ to produce the opening addresses for such of the non parliamentary parties as wish to avail themselves of that service. No similar package is offered to the parliamentary parties. Each of those parties must make its own arrangements for production of its opening and closing addresses.
[28] The making available of the production package to non parliamentary parties was reflected in the Commission’s allocation decision by describing the monetary allocation for such parties as “$10,000, plus a production package for the opening address worth over $7,000”.
[29] The question whether there is a proper legal basis under the Act for the production package arrangements, and the practical effect of the tying of funding to the production package, require a consideration of the inter-relationship between s 70(2A) (which allows a political party to spend money other than a s 74A allocation on production costs) s 74B (which specifies how money allocated under s 74A is to be expended and how payment is to be made) and s 77A(5) and (6) (which prescribe how the production costs of opening and closing addresses are to be paid).
[30] The scheme of the Act with regard to payment of production costs for election programmes may be briefly described. There is a distinction which must be borne in mind between the fee paid to a broadcaster for broadcasting an election programme (which may for convenience be described as “broadcasting costs”) and the cost of production of an election programme, which will include the costs of recording the programme in a format suitable for broadcasting by the broadcaster. Costs of this nature may conveniently be referred to as “production costs”. For opening and closing addresses, there are no broadcasting costs. Section 71 requires that these must be broadcast free of charge by TVNZ and RNZ. There will however be production costs incurred for those opening and closing addresses. For other election programmes, both broadcasting costs and production costs will be incurred. Section 70 has the effect of requiring that broadcasting costs of an election programme for a political party must be met out of the funds allocated to that party under s 74A. There is no similar requirement for production costs. Under s 70(2A) production costs may be met either from that party’s s 74A allocation, or from other funds available to that party. If production costs are met by a party from other funds, then that will increase the amount available to that party for broadcasting costs. The payment of production costs from other funds must comply with the Electoral Finance Act 2007, but it is unnecessary to describe that here.
[31] The payment of production costs for opening and closing addresses is provided for in s 77A. Subsection (5) and (6) provide:
(5) The Electoral Commission must—
(a)determine each amount to be paid to TVNZ or RNZ on account of the production costs of every opening address and every closing address broadcast under section 71; and
(b)pay that amount to the person who issued the account for the production costs of the opening address or closing address.
(6)Each amount paid under subsection (5)(b) must be paid out of public money appropriated by Parliament (or deemed by section 74(2) to have been appropriated by Parliament) for the purpose specified in section 74(1).
[32] There are two important questions of interpretation involved in determining the practical significance of the production package. The first is whether the
payment by the Electoral Commission under s 77A, which must be made from the funds appropriated under s 74, is to be made:
(a) From the amounts allocated to each political party under s 74A; or
(b)Separately from that allocation, so that the amounts to be allocated under s 74A will comprise not the total amount appropriated under s 74, but the total amount allocated under that section less the amount expended by the Commission under s 77A.
The Act does not clearly specify which of those courses is to be adopted. There is in s 77A no reference to the allocation under s 74A. That would appear to suggest that the s 77A payment is separate from the s 74A allocation, though it potentially raises practical problems. That is not the only possible interpretation. It seems that the Commission has proceeded on the basis that the s 77A payments come from the s 74A allocations. I express no view on which interpretation is correct.
[33] The second question is whether the production costs of an opening (or closing) address can, if a party chooses, be met from its own funds. There is no clear statement in the Act as to the inter-relationship between s 70(2A) and s 77A, so far as the production costs of opening addresses are concerned. Section 77A is expressed in mandatory terms, requiring the production costs of opening and closing addresses to be met from the s 74 allocation. That suggests that the ability in s 70(2A) to spend money from other sources on production costs does not extend to the production costs of an opening address or a closing address.
[34] The urgency with which this judgment must be delivered, and the limited evidence available in these proceedings, makes a full examination of these two important questions impractical. At first blush, I find the inter-relationship between the provisions unclear. I must apply them as best I can in determining the issues in these proceedings.
[35] Mr Allan submits “the applicant objects to the Commission’s division of a production package of $7,000 which in effect spends $7,000 out of the applicant’s
total allocation of $17,000 or 41% ….. Not only is the applicant required to spend
41% of its meagre allocation on the production of its opening address, it is forced to spend this with TVNZ”. The strength or otherwise of that submission depends in large measure on the answers to the questions which I have posed above. The total allocation for each of the non parliamentary parties is an allocation of $10,000, plus the production costs of the opening address by TVNZ. If the effect of s 77A is that payment of production costs of an opening address must be met out of the s 74A allocation, to the exclusion of s 70(2A), then the Commission’s decision does not impose any restriction on the way in which the s 74A allocation is to be spent beyond that inherent in the Act itself. On that interpretation, if production costs to TVNZ were $7,000, the allocation would have essentially the same effect as an allocation of $17,000, which was not explicitly tied to the production package. If that is the effect of s77A, the non parliamentary parties are in practical terms not at a disadvantage to the parliamentary parties from the way in which the allocation has been structured, because the parliamentary parties are also, on that view of the Act, required to spend part of their allocation on production costs for the opening address. If, on the other hand, parties have the ability, under s 70(2A), to meet production costs of opening addresses from other funds, then the explicit “tying” of a part of the funding for the non parliamentary parties, but not of the parliamentary parties, would create a difference between the parliamentary parties and the non parliamentary parties which may need to be taken into account by the Commission.
[36] A further issue, on which the two questions which I have posed above are also relevant, is the legal basis for tying the $7,000 funding to production costs for an opening address. The Commission may under s 74A(2)(b) include conditions concerning the manner in which any political party is to expend its allocation. Mr Allan submits that the tying of the $7,000 to the production package is not a permissible condition. Mr Gunn submits that it is. If s 77A requires those production costs to be met out of the s 74A allocation in any event, then the question whether that is a condition which may validly be imposed under s 74A does not arise. If it does not, that question may have to be considered.
[37] The timing is such that any answer which I might give on the production decision would be essentially academic. I was advised at the hearing on Monday, 15
September, that filming under the production package was to take place on 16 and 17
September. It is thus already a fait accompli. As the Alliance has elected to participate in the production package, because of the time constraints, it recognises that any success on this aspect of the claim would be a Pyrrhic victory. I consider that the issues which I have raised as to the production package are important, and require proper consideration. I have not heard submissions on the questions which I have raised. It is better that I do not venture a view on them at this stage. Relief in judicial review matters is discretionary. Any relief which I might grant would necessarily be ineffective. In the circumstances, I consider that the appropriate course is to decline to rule on this aspect of the challenge at this stage. Leave should be reserved for it to be pursued further.
RESULT
[38] The formal outcome is that the application for judicial review is dismissed, except that leave is reserved to the applicant to apply further in respect of the matters in paragraph [37].
[39] If any party wishes to raise costs issues, memoranda may be filed. My preliminary view is that there should be no order as to costs. I consider that the litigation has been reasonably brought and that there is a significant public interest element in it.
“A D MacKenzie J”
Solicitors: G C Knight Solicitor, Christchurch for Plaintiff (Counsel – P N Allan) Crown Law, Wellington for Defendant
Dr Michael Kidd, the Family Party, Auckland
Kiel Thompson Caisley, Auckland, for the New Zealand National Party
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