Appendix 2: Advertising and Communications - Further Guidance

Principles

Agencies should take account of the following principles when considering the appropriateness of advertising and communications campaigns at any time; not just during an election year.

From Standards of Integrity and Conduct, a code of conduct for the State Services issued by the State Services Commissioner:

"Impartial: We must maintain the political neutrality required to enable us to work with current and future governments."

The guidance accompanying the code says "A major characteristic of New Zealand's constitutional arrangements is that public sector organisations are apolitical. It is important that in the State Services we do nothing that will detract from the ability of our organisations to work with the Government, regardless of the political parties Ministers may represent. Our responsibility to the Government is to work in a politically neutral manner".

From State Servants, Political Parties and Elections: Guidance for the 2008 Election Period, issued by the State Services Commissioner in February 2008

Publicity and advertising are legitimate forms of government and parliamentary spending: communication campaigns that inform people of their rights and obligations do not need to stop.

It remains important in an election year for agencies to do things such as informing people of their rights (e.g. eligibility for a programme) or their obligations (e.g. road safety). On the other hand there may not be an immediate need (e.g. starting a campaign to publicise a new programme that is not due to commence until well after a General Election). In those circumstances, it could be appropriate to delay the advertising until after the General Election.

From the Cabinet Manual (Guidelines for Government Advertising)

"Government advertising should deal with matters in which the government has direct responsibility. The objective of the advertising may be to:

• inform the public of proposed/new/revised/existing government policies;
• inform the public of government services available to them;
• advise the public of new/revised/existing entitlements or responsibilities;
• encourage the public to adopt certain kinds of social behaviour generally regarded as being in the public interest (e.g. road safety advertising)."

"Government advertising should be presented in a manner which is:

• Accurate, factual, truthful - Factual information should be outlined clearly and accurately. Comment on and analysis of that information, to amplify its meaning, should be indicated as such.
• Fair, honest, impartial - The material should be presented in unbiased and objective language, and in a manner free from partisan promotion of government policy and political argument.
• Lawful, proper - The material should comply with the law."

"Justification and Accountability - Governments are accountable to Parliament for the use they make of all public funds. Government advertising should be undertaken only where there is an identified and justifiable information need by the intended recipients."

From the Electoral Finance Act 2007

The State Services Commissioner takes the view that advertising or communications by State Services agencies that contravene the principles of sections 5 and 67 of the Electoral Finance Act are unacceptable at any time.

What is advertising?

Agencies should adopt a broad definition of advertising for the purposes of this guidance. Government advertising and communications may include media releases, letters and other forms of correspondence, material published on the Internet, discussion forums or lists, and more recent technologies such as blogs, wikis and social networking sites.

Government advertising

The Cabinet Manual (Guidelines for Government Advertising) defines government advertising as "any process for which payment is made from public funds for the purpose of publicising any policy, product, service, or activity provided at public expense by the government". (see: www.cabinetmanual.cabinetoffice.govt.nz/appendix-b)

The guidelines state that government advertising may be in the form of:

• printed matter such as parliamentary papers, discussion and consultative documents, booklets, pamphlets, and posters;
• audio-visual material such as films and video-tapes; or
• advertisements and sponsored features in the press, on radio, and on television.

Election advertising

Section 5 (1) of the Electoral Finance Act 2007 defines election advertising as any form of words and/or graphics that can reasonably be regarded as encouraging or persuading voters to vote (or not to vote):

• for one or more specified parties or candidates or for any combination of such parties and candidates; and/or
• for a type of party or for a type of candidate that is described or indicated by reference to views, positions or policies that are or are not held, taken or pursued (whether or not the name of a party or candidate is stated).

Who is covered?

The State Services Commissioner's State Servants, Political Parties and Elections: Guidance for the 2008 Election Period provides guidance to agencies for whose employees the Commissioner has a mandate to provide advice and guidance on integrity and conduct (section 6 (ha) of the State Sector Act 1988). This includes all employees within the State Services, except Crown Research Institutes. The State Services is defined in the State Sector Act 1988 and includes departments, Crown entities (but not tertiary education institutes), Crown entity companies, Crown entity subsidiaries, and agencies listed in the 4^th schedule to the Public Finance Act.

Section 67 of the Electoral Finance Act 2007 lists the organisations which may not publish election advertisements. It is a broader group than the Commissioner's mandate, i.e.:

• the chief executive (however described) of a department of State or a Crown entity;
• a department of State;
• a Crown entity;
• a State enterprise (within the meaning of section 2 of the State Owned Enterprises Act 1986) or a Crown owned company; and
• any other instrument of the Crown.

This guidance should also be useful for agencies which are not covered by the Commissioner's mandate, but which make decisions about publicly-funded advertising and communications activity.

When does care need to be exercised?

The guidance set out in the Guidelines for Government Advertising and in the State Services Commissioner's State Servants, Political Parties and Elections: Guidance for the 2008 Election Period applies on an ongoing basis. Agencies should take account of the following time periods when considering the appropriateness of advertising:

Ongoing

It is never acceptable practice for State Services agencies to use public funds in a way that could be seen as encouraging or persuading voters to vote (or not vote) for one or more specified parties or candidates. Under the Electoral Finance Act 2007, such a practice may also be illegal.

The Electoral Finance Act 2007 prohibits State servants and agencies from publishing, or causing or permitting to be published any "election advertisement". A conservative approach should be taken, to ensure that the Act is not breached. However, the normal business of government should continue as noted below.

In the immediate election period, i.e. the three month period before the General Election

Although the Electoral Finance Act does not prescribe a regulated period in relation to election advertising, agencies are encouraged to exercise "escalating caution" as the time gets closer to an election. Something that may at other times be regarded as innocuous might take on a different aspect if issued close to an election. Agencies may need to consider whether some planned advertising or communications activities are necessary during this time, or whether they should be deferred.

Application of this guidance

The application of these principles in any particular case requires careful consideration of the relevant facts, and the application of good judgement.

Advice may be sought from the State Services Commission (election@ssc.govt.nz) and the Office of the Auditor-General. This will not constitute approval or clearance of material for compliance with legislation or guidelines: in all cases the obligation to comply with the law and to adhere to the principles of neutrality belongs to the agency and its board or chief executive.

The Electoral Commission and the Chief Electoral Officer may, under section 70 of the Electoral Finance Act, report to the Police if they believe an offence has been committed under the election advertising provisions.

The use of the 'All of Government' branding does not, of itself, constitute election advertising.

Examples

The following hypothetical examples help illustrate the application of these principles.

Example 1

During an election year, an agency undertakes a communications campaign to publicise its achievements since a certain date (which coincides with the election of the current party in government).

Issues:

• The advertising may not meet the Cabinet Manual objectives for government advertising of informing about government policy, entitlements or desired behaviour.
• By linking advertising to the date at which the current party in government was elected to power, particularly if it focuses on new entitlements or increased funding during that period, such advertising could create a perception of political bias. It could be seen to be influencing voters and thus in breach of long-standing principles as well as the Electoral Finance Act. This aspect may require further consideration and legal advice.

Example 2

An agency has promoted a community health and safety week initiative, with associated advertising, at the same time every year for the past eleven years. This year the initiative is due to occur two months before the likely date of the General Election. Activities planned include awards to those who have contributed most over the past year to the objectives sought.

The Minister concerned suggests to the agency that the promotion should be postponed, to avoid any perception of it being considered a 'political' activity. A Member of Parliament from the governing political party is a member of an association strongly linked to the initiative and will receive an award.

Issues

• There are good objective reasons for continuing the planned week-long initiative; the normal business of government should continue, and it has occurred at this time of year every year. Care will be needed with the design and content of advertising associated with the initiative.
• However, careful consideration is required as to whether the Member of Parliament should receive an award, and thus be associated with the week, this close to an election.

Example 3

It is three months until the General Election. The opposition party has criticised a government policy, but the criticisms are regarded as being based on incorrect information. The agency involved considers the criticism misleads the public, and decides to make a media statement to correct the misinformation.

Issues

• This situation requires careful consideration. Although the agency is setting out to correct misinformation, that may be better to come from the Minister rather than the agency. The agency may get drawn into a political situation and may breach existing principles and/or the Electoral Finance Act.
• This example highlights the fact that media statements by an agency are included in the definition of advertising.

Example 4

An agency is responsible for a new programme which, if the current government is re-elected, will come into effect in April of the year following the election. It wants to start early with publicity so that all those who would be entitled to benefits under the programme are aware of it. The advertising will commence in October, which is one month before the general election.

Issues

• In this situation, it would appear prudent to delay the campaign until after the General Election, particularly as the implementation of the programme may be dependent on the election outcome. That will reduce any risk that the campaign is seen as not politically neutral.

Example 5

A New Zealand sporting team wins a major international competition. An agency which provided funding to that sport plans an advertising campaign to highlight that government support contributed to the success. It is two months until the General Election.

Issues

• The advertising may not meet the Cabinet Manual objectives; ie, that advertising should inform about government policy, entitlements or desired behaviour.