Friday, August 01, 2008

Election funding: Tui-ed!


The Electoral Commission is warning that a Tui billboard poking fun at Winston Peters may breach the Electoral Finance Act - in the process confirming the right's fears that the EFA would rule out even joking about candidates. But are they right? I doubt it. While at face value the ad could reasonably be regarded as encouraging people to vote against a candidate (in this case Winston Peters), thereby classifying it as an election advertisement requiring a promoter statement, what the EC seems to have forgotten is that the law must be interpreted through the lens of the Bill of Rights Act's affirmation of freedom of expression. And that in turn will require recognising the billboard for what it is: part of a long tradition of political satire - exactly the sort of speech the BORA was enacted to protect. This in turn will set an extremely high bar to ruling it an electoral advertisement - basically, the courts will not presume that such speech was intended to be banned unless Parliament expressly said so. And since the EFA doesn't contain a clause saying "we're banning jokes, and we really, really mean it. This means you, Tui!", they're almost certainly in the clear.