The party with the most to do after Saturday’s by-election is the Greens. But the party that came out of the weekend in the worst shape may turn out to be Act, writes Simon Wilson

There’s a whole bunch of reasons why the Greens didn’t do well in Mt Albert and none of them should be acceptable. This is a political party that desperately wants to help form the next government, yet it is stuck in the polls, at around 10 per cent, and the by-election decidedly did not help.

Labour won 77 per cent of the vote; the Greens trailed with 11 per cent. Why did Labour do so well? They had many more people on the ground; the seat was theirs anyway; National and Act stayed away; the Greens don’t do well in by-elections because they’re a list party; and despite recent controversies centre-left voters wanted to signal confidence in Labour. And most of all, everyone likes Jacinda. Sure. But what it all boils down to is this: Labour sucked up all the oxygen and the Greens were left gasping for breath.

Labour’s Jacinda Ardern shared the love with the Greens’ Julie Anne Genter, but she definitely didn’t share the votes. For both parties the by-election was a chance to build to the general election in September, but only one of them took it.

It’s not a bad loss for the Greens. They can bounce back. But that should be cold comfort. Genter is one of their senior MPs and when they put her up for the contest they must have been hoping for a valuable step forward. They might have been happy enough with a 65:20 result, although even that wouldn’t have been great. But what they got is very disappointing.

Now what? The Greens need to jumpstart their campaign, and soon. They can’t risk that Labour will carry the by-election pattern into the general election, resurrecting itself at the Greens’ expense. If that happens, either the centre-left will not be large enough to form the next government or Labour will partner up with NZ First and exclude the Greens from power.

Either outcome would be a disaster for the Greens. They’re not in parliament to be a ginger group. They’re there to be in government. And to be assured of that, they really need to be bigger: their 11 per cent share of votes in the last general election gave them 14 MPs but it’s not enough. They need 15 per cent, or more.

In other words, they have to persuade half as many people again to vote for them this September, compared with 2014. Can they do that?

Attention focuses now on the party list. They’ve just had their list conference and the draft has gone back to the branches. Everyone in the party gets to vote.

The Greens list for 2017 can’t look like the list for 2014. Of course there must be some continuity: they need to offer political experience at the top. But they must also complement that experience with fresh, youthful, charismatic energy. Credible candidates who will galvanise media and voter interest. Several such candidates, sitting in the top 15.

This is actually another reason the Greens desperately need a bigger caucus. Although renewal is always essential in a political party, only two of the Green MPs have announced their retirement, which adds to the pressure on new candidates. Party members have some tough choices to make: some of their incumbent MPs must be shunted down the list. It’s uncomfortable and the debates can be bitter. But that’s what political success demands.

If Green Party members are in any doubt about this, they should take note of what Labour’s doing right now with its candidates: choosing skilled, new high-profile people with charismatic clout. From Willie Jackson to Deborah Russell, Labour is selecting people who will suck up a lot of the centre-left oxygen come election time and will also provide their caucus with serious talent in the years to come. If they promote Jacinda Ardern to deputy, they’ll suck up even more of the oxygen.

What else should the Greens do? Well, first off, they have to command the progressive vote. Force Labour to compete for votes with National, NZ First and the Maori Party, not plunder the Green support base. Some bold and brave keynote policies are required for that.

How about: A clear and urgent target for every child to live in a warm, dry home? Yes, there’s massive policy work to do on that. So just do it.

How about: Reset the entire framework for urban transport. The best way to get all modes of urban transport working well is not to “favour them all equally”, which is merely the Joycean formula for maintaining the clogged-up status quo, but to give absolute priority to cycling and walking. Sell that idea.

How about: A flagship economic policy that shows how to achieve a synchronicity of economic and environmental goals.

How about: Reset the rivers debate with a much higher and faster target to clean them up. The Greens already have this policy but now they have to make much more of it.

Perhaps most of all, the Greens have to command the green vote. They used to be known as “everyone’s second-favourite party”, which was little more than a licence for people to like them without having to vote for them. And now they contend with the view that green values are strong enough in National and Labour for the Greens themselves not to matter so much. But that’s not true. The battle is not won.

Now, incontrovertibly, there’s climate change. It’s a far bigger threat to this planet that anything previously faced by most people alive today. Not just for the ravages of wild weather, but for the wars and floods of refugees it causes and for the economic destruction it threatens. And New Zealand is not, or will not be, immune from any of it.

The Greens have to sell the idea that if you care about climate change, you have to vote Green. No other party will lead the fight against it.

Are we hearing that?

Meanwhile, over the weekend the Act Party held its annual conference. Normally in election year party conferences are rousing affairs, with lots of calls to action and other upbeat motivational stuff. And normally at Act conferences, whatever the year, you are likely to see a bevy of yellow-shirted young party activists all enthusiastically fired up to spread the great gospel of libertarianism and the free market.

Weirdly, none of that happened in the Act conference this time. The room was largely filled with men who were significantly older, wealthier and whiter than the norm. When the youthful party leader and sole MP, David Seymour, addressed them, he must have felt he was talking to his father’s bowling club.

Election success these days comes with policies, personalities and money, of course, but it also needs people. Door-knocking, staffing the phones and chatting up a storm on social media are now regarded as essential. Looking at the Act delegates, it was very hard to see most of them doing any of those things or even organising other people to do them.

Seymour announced a progressive policy of reduced sentences for prisoners who do literacy and drivers’ licence courses – in other words, equip themselves with baseline skills to hold down a job when they get out. It’s a good policy, and there’s good evidence overseas it will work.

But he wrapped it in an extension of the punitive three-strikes policy. Dealing effectively with crime – something everyone agrees we should do – requires a commitment to fresh thinking around solving the causes of crime. That’s not helped when you keep beating the old “lock ’em up!” drums of law and order at the same time.

Act polls at one per cent or less and survives entirely because National indulges it in Epsom. Even Epsom voters don’t give it their party vote, which they surely would if they believed in what Act stands for. The party conference suggested nothing is about to change. Act seems to be neither fighting fit nor bursting with good ideas. After three terms of a centre-right government they believe has been moribund, it was a bit of a surprise.

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.