The shocking true story of a law professor, a student radio station and a pro-cannabis political party conspiring to introduce US-style negative election campaigning to the nation’s airwaves, all with the help of the NZ Court of Appeal.

As regular readers of The Spinoff may be aware, 2017 is an election year in New Zealand. On September 23 – or earlier, if you’re one of those tragics who just won’t wait for polling day – we can all merrily cast our votes and thereby decide if Winston Peters gets to choose our next government.

So far, so 2014. What may well be different this time around, however, is the role that TV and radio play in the election campaign. Here is why.

Up until October last year, everybody assumed that only political parties and individual constituency candidates could place election ads on TV and radio. That’s because the Broadcasting Act 1989, s.70 states that: “no broadcaster shall permit the broadcasting, within or outside an election period, of an election programme.” Breaching this prohibition then carries a potential fine of up to $100,000, so it’s really not something you want to do.

An “election programme” is then defined so widely as to potentially cover just about anything you can screen or play that conveys any sort of partisan message. The Electoral Commission, for instance, thought that John Key’s merely hosting a “Prime Minister’s Hour” on RadioLive was an election programme, even though he didn’t mention politics on it at all. It also thought Winston Peters appearing in a skit on the Jono and Ben show turned that into an election programme.

Therefore, while the Broadcasting Act specifically permits political parties and candidates some limited freedom to place partisan ads in the three months before polling day (more on this in a moment), no one else was believed to be able to do so. That then freed us from having to watch (or listen to) messages like this one from the US, or this one from Australia.

Or, so we thought. For shortly before the 2014 election, Darren Watson and Jeremy Jones released their gently satirical song and accompanying video, “Planet Key”. When a public access radio station contacted the Electoral Commission to check whether they should play this, the Commission advised it not to do so as the song was an “election programme”. Rather than risk being reported to the Police, potentially prosecuted and then fined, the station (and all other broadcast media) then refused to put the song on the airwaves.

Messers Watson and Jones understandably were somewhat pissed off about this advice, given that it effectively rendered their work unplayable. So they went to court and challenged the Commission’s decision. That challenge ended with the Court of Appeal quite sensibly deciding that the song and video weren’t an election programme and so could be freely aired, before going on to do something else entirely.

In the space of a single paragraph, the court apparently upended our previous understanding of what could and could not be broadcast around elections:

“We have concluded that the prohibition [on broadcasting election programmes] is indeed confined to programmes broadcast for political parties or candidates, being those entitled to benefit from an allocation of broadcasting time under pt 6.”

So, according to the court, the Broadcasting Act doesn’t impose a blanket ban on everyone using TV and radio for partisan political ends, before allowing political parties and candidates a limited exception. Rather, it bans only political parties and candidates from using TV and radio for partisan political ends, outside of the limited exceptions provided in the Act. Meaning that everyone else is free to use TV and radio to broadcast any election-related message that they choose.

That represents a pretty fundamental change to how election campaigning can occur in New Zealand. It allows everyone and anyone who isn’t a party or candidate to run the sort of attack ads that I linked to above. But is it really what the court’s ruling means?

To find out, I went to the commercial arm of the University of Otago’s student-owned station, Radio One, and sweet-talked them into selling me a 30-second advert slot. Then I went into Radio One’s studio and recorded my proposed advert:

“The following is a paid advertisement, authorised by Andrew Geddis, 3 Derdan St, Purakaunui. The Aotearoa Legalise Cannabis Party wants to legalise the smoking of marijuana. If elected to government, the Aotearoa Legalise Cannabis Party would stop the police being able to arrest people who possess marijuana. If, like me, you want the law to keep marijuana illegal, then you need to vote against the Aotearoa Legalise Cannabis Party at the 2017 election. Don’t legalise it, don’t vote ALCP.”

Does the Broadcasting Act prohibit Radio One from airing this slashing, nakedly partisan hatchet job on the ALCP? To find that out, I encouraged the station to write to the Commission and ask them what they think. Because despite the Court of Appeal’s ruling in October last year, the Commission’s website is still telling the world that:

“Individuals or organisations who are not parties or candidates (including third parties) may broadcast an advertisement which relates to an election, such as advocating for or against a policy, but it must not name or directly advocate for or against a party or candidate.” 

On Friday last week, Radio One got a response from the Commission:

“The definition of an election programme in the Broadcasting Act includes a programme that appears to encourage or persuade voters to vote or not to vote for a political party or the election of any person at an election. However, the courts have held that the election programme rules do not apply to broadcasts initiated by third parties … Assuming [Andrew Geddis] has initiated the advertising as a third party the advertisement will not be an election programme and can therefore be broadcast on the radio at any time.”

So contrary to what its website said, the Commission accepts that nothing prevents Radio One from running the recorded advert on my behalf. Consequently, on Friday evening at 10pm, my anti-ALCP message was quite legally broadcast in the middle of NORML’s regular Overgrown show: being a “weekly dose of hard-hitting ganja tunes, cannabis news, events, science and truth.”

Outside of demonstrating that I clearly have too much time on my hands and really should get myself a real job, what is the point of this little story? Well, the principle established by my experiment – that nothing stops broadcasters from airing partisan ads on behalf of persons other than parties or candidates – scales up.

What is good for me as an individual spending $20 on Radio One to tell pro-cannabis students not to vote for the ALCP is good for Don Brash’s Hobson’s Pledge outfit spending $300,000 on a month-long television advertising campaign warning New Zealanders of the threat that the Māori-Mana Party arrangement represents for New Zealand’s future. Or Federated Farmers spending some hundreds of thousands of dollars on TV and radio spots urging voters to reject the Greens and the burden they would impose on the agriculture sector. And so on.

Of course, people like me (or Don Brash, or Federated Farmers) always could spend that money telling people how to vote via other media: billboards; pamphlets; newspapers; the interwebz. But our law traditionally has seen the broadcast media as being a special case – more expensive to access and better able to reach voters, so requiring different and more prescriptive forms of regulation in the name of protecting democratic equality.

Or, at least, we thought it required that regulation until the Court of Appeal told us differently in October. And now I’ve proved that this decision means the controls we believed applied to using the broadcast media for electioneering no longer exist for private individuals and groups. Which may make the 2017 election campaign a very different one from 2014.