Judicial review – Broadcasting Act 1989 – Electoral Act 1993 – allocation of funding by Electoral Commission – failure to consider mandatory relevant considerations – principle of legality – Alliance Party v Electoral Commission [2010] NZCA 4

New Zealand Outdoors & Freedom Party  & Ors v The Electoral Commission [2023] NZHC 1823 per Ellis J.

Part 6 of the Broadcasting Act 1989 empowers the Electoral Commission to allocate a fixed pool of public funds to eligible political parties for advertising purposes in the lead-up to a general election.

Parties are not permitted to use funds from any other source for these purposes. Allocation decisions have long been fraught due to the inherent tension in the Act’s dual purposes of rewarding larger parties for their greater levels of public support and providing a fair opportunity to smaller parties to convey their policies to the public.

Section 78(2) of the Act sets out a list of mandatory criteria to which the Electoral Commission must have regard when allocating funds to each party. These are:

• the number of people who voted at the last general election for that party and their candidates;
• the number of people who voted for any candidate belonging to that party in any by-election since the last general election;
• the number of MPs who were members of that party;
• any relationships that exist between that party and any other party;
• other indications of public support for that party; and
• the need to provide a fair opportunity for each party to convey their policies to the public.

The five parties represented in Parliament received 76.8% of the total funding pool, with 55% allocated to Labour and National.

The applicants – the New Zealand Outdoors and Freedom Party, Vision New Zealand, Freedoms New Zealand and the Aotearoa Legalise Cannabis Party – are small political parties that collectively received 4.8% of the total available funding for the 2023 general election. Vision New Zealand received no separate allocation as it is a “component party” falling under the umbrella of Freedoms New Zealand.

The applicants sought judicial review on the basis the Electoral Commission failed to have adequate regard to certain mandatory s 78(2) criteria, in particular, recent by-election results, trends and other indications of public support and the amount required for the applicants to fairly convey their policies. They also argued the commission was wrong either in not allocating Vision New Zealand separate funding or in not allocating Freedoms New Zealand more funding to recognise its “umbrella” status.

The court traversed the historical background and statutory regime in detail, accepting the s 78(2) criteria “have always favoured the established political parties”.

Ellis J observed the courts have emphasised the importance of the commission’s discretion in this area, noting the previous Court of Appeal decision Alliance Party v the Electoral Commission [2010] NZCA 4, which recognised the s 78(2) criteria as “exhaustive” and that the weight to be given to each criterion was one of judgment for the commission.

Ellis J found the commission had considered all the factors outlined in s 78(2) and had come to a holistic view on the extent of public support for each party.

In terms of the need to provide a fair opportunity for each party to convey its policies to the public, the judge noted fairness was likely to mean different things to different people. The court did not find that fairness required any specific decision other than the allocation of funding to each party was sufficient to purchase at least some television advertising.

With respect to the issue of umbrella parties, the court found s 79(3) of the Act plainly precluded the commission from making an allocation to an individual party that falls under the umbrella of another party.

While there might be circumstances where the size of an umbrella party justified greater funding, whether these circumstances existed would be determined by reference to the factors listed in s 78(2). It could not be said the commission had made a mistake in this regard.

Applicable principles: historical background and legislative scheme – fundamental rights engaged – whether failure to consider mandatory relevant considerations – weight a matter of judgment – whether deference is appropriate – tension in statutory purpose not a matter for courts.

Held: applicants’ claims are dismissed.

NZ Outdoors and Freedom Party v Electoral Commission [2023] NZHC 1823.