Guidance for Broadcasters
What is an ‘election programme’?
An election programme is defined in section 69(1) of the Broadcasting Act 1989 as a programme that is broadcast on television or radio during an ‘election period’ (see below) which:
- encourages or persuades, or appears to encourage or persuade voters to vote, or not to vote, for a political party or the election of a constituency candidate; or
- advocates support for, or opposes, a constituency candidate or political party; or
- notifies meetings held or to be held in connection with an election.
Usually, an election programme will appear as a short promotional / campaign clip for a political party or candidate, broadcast on TV or on radio.
In the 2020 election, an advertisement that is by or for a political party or candidate on a referenda issue, that encourages or persuades, or appears to encourage or persuade voters to vote, or note to vote, for a political party or candidate in the election, are election programmes and subject to the Election Programmes Code.
The Court of Appeal has held that election programmes are only those that are broadcast for political parties or candidates – and not programmes initiated by broadcasters or other third parties (The Electoral Commission v Watson & Jones, CA239/2015  NZCA 512, 20 October 2016).
Only general elections or by-elections for members of the House of Representatives are covered. Local body elections are not covered by the Election Programmes Code.
What if a news or current affairs programme covers election issues – is that an election programme?
No. News or current affairs programmes relating to elections, in 2020 relating to the referenda, (or any programmes broadcast to inform, enlighten, or entertain an audience) are not ‘election programmes’ for the purposes of broadcasting standards and are not subject to the Election Programmes Code (see Broadcasting (Election Programmes and Election Advertising) Amendment Act 1917, section 70(4)(a)).
However, news, current affairs and other programmes that cover the election/referenda or election/referenda issues will still be subject to the relevant broadcasting standards for Radio, Free-to-Air TV or Pay TV, and members of the public are able to complain about them to the relevant broadcaster (unless it’s a complaint about privacy, which can be made directly to the BSA).
Our on-air employee is also an electoral candidate, should we stop them from presenting their programme?
There is no legal requirement for the on-air employee of a broadcaster to stop presenting their programme during the election campaign, just because they are an election candidate. However, the candidate will need to take care in how they engage on issues that might be relevant to the election. You, along with the employee, should use your own judgement, taking into account the ethical, legal and employment considerations and broadcasting standards. If a candidate plans to continue in their broadcasting role, broadcasting standards will apply and the candidate can expect to be the subject of careful public scrutiny.
When can an election programme be broadcast?
It is an offence to broadcast an election programme for a party or candidate except during the election period. For the 2020 General Election that period runs from 16 August until midnight on 18 September 2020. There are also restrictions around the times at which and the days on which an election programme can be broadcast.
The Electoral Commission handles complaints relating to the timing of election programme broadcasts.
When is the election period?
The election period begins on Writ Day (the day the Governor-General issues a writ requiring the Chief Electoral Officer to make all necessary arrangements to conduct a general election) and ends at midnight the day before polling day.
This year for the 2020 General Election, the election period runs from 13 September 2020 until midnight on 16 October 2020.
We’ve received a complaint about an election programme direct, what should we do with it?
Will you assess election programme complaints differently from other complaints?
As with all complaints, we will assess any complaint on the facts and against the standards in the relevant Code(s). We will endeavour to deal with any complaints as quickly as possible, so you should be prepared to respond to the BSA’s requests for information on a short timescale. See Election Complaints Fast Track Process 2020.
We also recognise that elections have a special context. The standards will be applied in a manner that respects the importance of free political expression and debate.
In what format do you need a copy of the programme?
Please email it to us in electronic format – Windows Media Files for television and MP3 for radio. Alternatively you can send us a link to view the programme online.
Should we stop playing the election programme while the BSA determines the complaint?
The BSA cannot direct you to stop playing a programme that has been complained about so this will need to be your decision. You should assess this on a case by case basis but you may choose to have regard to the nature of the complaint, the effect of continuing to play the programme in terms of free and fair elections and the principles of freedom of expression. The political party or candidate that is responsible for the programme should also be consulted in any decision you choose to make.
What will the BSA do if it upholds a complaint under the Election Programmes Code?
If the BSA upholds a complaint about an election programme, the BSA can make any of its usual orders (eg order a broadcast statement, or costs to the Crown). In the event that a complaint is upheld the BSA also encourages the broadcaster and political party concerned to consider whether any changes ought to be made to the election programme, to mitigate the breach of broadcasting standards.
What election programmes have been complained about in the past?
The BSA’s previous decisions on election programme complaints are listed below.
- Thomas and SKY Network Television Ltd - 2017-082
- Brown and MediaWorks TV Ltd - 2017-074
- Rameka and Māori Television Service - 2017-070
- Lupton and Māori Television Service - 2017-071
- Cullen and Television New Zealand Ltd - 2017-072
- Curtis and Television New Zealand Ltd - 2017-065
- Curtis and Television New Zealand Ltd - 2014-124
- Kumar and The Radio Network Ltd - 2014-117
- Pekepo and MediaWorks Radio Ltd - 2014-116
- Allen and MediaWorks TV Ltd - 2014-106
- Clark and RadioWorks Ltd - 2011-158
- Lloyd and TVWorks Ltd - 2011-152
- Marshall and TVWorks Ltd - 2011-143
- Radley and Angus and Television New Zealand Ltd - 2011-142
- Stitt and The Radio Network Ltd - 2011-151
- Wood and SKY Network Television Ltd - 2011-135
- Reynolds and Television New Zealand Ltd - 2011-138
- Welsh and Television New Zealand Ltd - 2011-137
- Bowman and RadioWorks Ltd - 2011-129
- New Zealand Labour Party and RadioWorks Ltd - 2011-128
- Boreham and Television New Zealand Ltd - 2008-118
- Haden and Television New Zealand Ltd - 2008-122
- Marceau and TVWorks Ltd - 2008-123
- New Zealand Labour Party and Television New Zealand Ltd - 1996-134
- Green Society and Mai FM Ltd - 1996-129
- Middlemiss and Television New Zealand Ltd - 1996-128
Nothing in these complaints binds the BSA in determining the outcome of any future complaint. Each complaint is determined on the particular facts surrounding a broadcast.