A public law expert says the Electoral Commission - which
has recently cautioned against a song, a fashion exhibition and
a rugby billboard - is very risk averse and conservative in its
interpretation of electoral law.
The commission last week banned the satirical song Planet Key
from television and radio broadcasts, and cautioned against a
billboard for a rugby game which parodied National's election
Now it has taken aim at an exhibition showcasing the late
Labour MP Whetu Tirikatene-Sullivan's wardrobe because the
opening is due to fall on election day.
The Hawke's Bay Museums Trust has moved the opening to the
following weekend after the Electoral Commission advised any
reference to the Labour Party would have to be removed on
Otago University politics lecturer Bryce Edwards said the
commission was making the correct interpretation of the law.
"And if we have any complaints about these issues, we should
be focussing on shortcomings in the law, or having a debate
about the intention of the law and what we want."
However, Otago University public law expert Professor Andrew
Geddis said the commission was "very risk averse" and tended
to be cautious and conservative in its advice.
The commission did not want to get it wrong and end up with
someone being "hauled into court" and found criminally liable
of an electoral offence, he said.
Its advice was not legally binding and people could still go
"But of course the problem is, if you go against the
commission's advice, they may then report you to the police,
and then all of a sudden you find yourself being
The issue stems in part from the wording of the Electoral
Act, which has strict rules about election advertising, but
does not define what an advertisement is.
Dr Geddis said he did not believe the Planet Key song was an
advertisement. However, the Northland Rugby Union billboard
was clearly an advertisement because it looked like it was
promoting a political party, even though it wasn't.
The effect of an advertisement had nothing to do with the
intentions of the advertiser, but what a reasonable person
would think of it, Dr Geddis said.
The Tirikatene-Sullivan exhibition got into difficulty
because there were special rules relating to election day
which were much wider in scope.
The Electoral Act prohibits the display of party names,
emblems, slogans or logos on election day between midnight
It also prohibits the display or exhibition of material that
is likely to influence how electors should or should not
Electoral Commission spokeswoman Anastasia Turnbull said the
songwriter and exhibitor had approached the commission for
advice, while the billboard had received a number of
The Tirikatene-Sullivan exhibit was understood to feature
photographs of her life and work, some of which may have
included old versions of the Labour Party logo.
Ms Turnbull said it could be open to the public on election
day, but the commission had advised organisers to be careful
not to display any party logos or anything else that might be
perceived as political or associated with a particular party.
The commission said the Planet Key song -- considering its
content and the context in which it was published -- was an
election advertisement for the purposes of the Electoral Act.
An election advertisement was an ad in any medium which could
be regarded as "encouraging or persuading voters to vote, or
not to vote for a candidate or party or type of candidate or
Ms Turnbull said the commission had received a number of
complaints about the Northland Rugby Union signage.
"The organisation concerned took remedial action promptly,
and no further action is being considered."
She said the number of requests for advice, enquiries and
complaints the commission had received would be available
after the election.
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