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Why political attack ads will have to stop using footage from parliament

Speaker Trevor Mallard has announced a crackdown on parties using footage of their opponents in parliament for attack ads. What’s this all about? Electoral law expert Andrew Geddis explains. 

As the House was kicking off its business yesterday, Speaker Trevor Mallard opened things up by announcing a ruling on Standing Orders. A Labour Party MP had complained about National using somewhat unflattering edited clips of government MPs speaking in the House in its facebook posts. And so, the Speaker told National (and other parties that had done similar things) to stop it and take down the posts they’d already made by 5 pm today.

What’s that now? The Speaker’s telling the opposition they can’t poke the borax at government MPs? But I thought we lived in a democracy! Is it any wonder that Simon Bridges called the Speaker’s ruling “a chilling move designed to stop freedom of expression” and vowed to fight it!

Well, maybe. The outcome – that political parties can’t highlight their opponents’ whoopsie moments in the House – does seem like a bit of a silly one to me. However, the fault for this state of affairs really lies more at Simon Bridges’ door that at the Speaker’s.

Explaining why that is will involve a short trip through parliamentary rules and how these get made. Sorry for that, but I’ll try and make it as painless as possible.

Parliamentary processes are governed by Standing Orders – the House of Representatives’ own rules on how it will run itself. And the use of parliamentary TV footage, which the House provides to the public, is governed by “Appendix D” of these Standing Orders. That Appendix contains this mandate:

  1. Coverage of proceedings must not be used in any medium for—
  1. political advertising or election campaigning (except with the permission of all members shown)

The Speaker has now ruled that National’s chopping up of government MP’s statements in the House to present them in an unflattering way on its facebook feed is a form of “political advertising”. Because the government MPs didn’t give permission for this to happen, it breaches this parliamentary rule. And a breach of that rule can be punished as a “contempt” of the House, which the Speaker says he won’t pursue for the moment, but may if the behaviour continues.

In my view, that seems like a completely fair interpretation and application of the rule in question. While Simon Bridges tried to convince the Speaker that National’s facebook posts weren’t really “advertising”, but rather a form of parliamentary reportage akin to the news media’s, that argument hardly passes the laugh test. And I take solace in the fact that Graeme Edgeler, whose non-partisan twitter pedantry is legendary, apparently thinks the same thing

That’s not to say that the rule itself isn’t a bit silly. It probably would make sense to get rid of it when the Standing Orders are reviewed next year, which is what the Speaker strongly hinted at when making his ruling yesterday. Nor, as Paula Bennett has pointed out, does the Labour Party exactly have clean hands in this matter. Their sudden burning concern about this issue can fairly be questioned and criticised. 

However, until the Standing Orders can be reviewed and changed, the rules are the rules and it’s the Speaker’s job to enforce them when a breach is brought to his attention. The alternative would be for the Speaker to effectively decide for himself which Standing Orders are good or bad and so will get applied. I’d like to see the opposition’s response should he take that approach to his job!

It also is worth reminding ourselves just how the current rules came to be such. Up until 2017, the restrictions on using parliamentary TV footage were even more draconian. Standing Orders prohibited its use not only for political advertising, but also for the purpose of “satire, ridicule, or denigration” – a fact that drew the attention of The Daily Show’s Jon Stewart (kids, ask your parents). 

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When MPs reviewed these Standing Orders in 2017, they agreed that this particular attempted control on public commentary risked “making Parliament seem out of touch and wary of criticism” and so removed it. But beyond this, the reviewing MPs “could not reach agreement about a relaxation of the rules for official television coverage” and so no further changes were made.

And who was opposed to further relaxation of these rules? Well, according to Labour’s Chris Hipkins in the House yesterday – with National’s Gerry Brownlee agreeing – it was then governing National Party. And who was a member of the Committee that reviewed the Standing Orders? A young tyro by the name of Simon Bridges. 

And who then recommended that the House adopt the amended Standing Orders, which continued to prohibit the use of TV footage for political advertising? Have a watch here and see (hint: it was Simon Bridges).

All of which means we probably need to chill out a bit. The Speaker isn’t taking it upon himself to undermine democracy. He’s interpreting and applying the rules that MPs collectively have decided to apply to themselves. Those rules may be silly, but there’s an established process to change them and he can’t go about picking and choosing which ones to uphold in the meantime. And if the now opposition doesn’t like how he’s doing that … well, they probably shouldn’t have insisted on keeping the rule while they were in government.


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