Putting the Prime Minister on the radio for an hour to show listeners what a nice guy he is "appears to encourage or persuade voters to vote for a political party or the election of any person at an election". Who'd a thunk it?

Just a very quick note on the Electoral Commission's decision to refer the "Prime Minister's Hour" on Radio Live to the Police as a potential breach of the Broadcasting Act.

(1) It's just that - a referral - rather than a definitive finding that the law has been breached. In order to get that, the Police will have to decide to prosecute (by no means a given) and the Court would have to convict (again, by no means a given).

(2) The Electoral Commission must have reached a different conclusion on the meaning of "election programme" in the Broadcasting Act to that reached by the Broadcasting Standards Authority in this decision. Which shows that the matter is not a completely clear cut one.

(3) But that said, the Electoral Commission's decision has the potential to be the determinative word on this issue. Even if the Police don't prosecute, the fact that the Commission has indicated it will try to get them involved in future such shows creates enough of a legal chill to warn off broadcasters. I mean, is it worth the risk of potential prosecution, consequent legal fees and fine of up to $100,000 to pull such a stunt?

(4) But it's hard to find too much sympathy for Radio Live here. They were warned before they ran the show that it would have to be very carefully handled so as to avoid breaching the law. And while barring "politics" from the hour is one thing, sticking the PM on the air for an hour a couple of months from an election with a host of famous and well liked New Zealanders, all of whom engage in friendly banter and underscore the PM's everyman image, is political to the core. Or, put it another way ... if there was no electoral advantage to be gained from this activity, why exactly was the leader of the country spending an hour doing it? Is it an urgent affair of state for him to find out on air how Peter Jackson's Hobbit filming is going? 

(5) Also note that Labour's complaint at the time that Phil Goff wasn't given an equal opportunity to have a show really was a complaint that if National gets to have an illegal boost to their election chances, then Labour should get one too. 

(6) While it is Radio Live who are directly in the gun as a result of this referral, did the Prime Minister abet the commission of an offence? And is the hour's worth of free publicity to the PM a donation, the value of which must be declared under the Electoral Act? And if the value of the hour's worth of radio time is more than $30,000, why wasn't it disclosed prior to the election?

Right - that's it for now. Got to run off and say all this on camera to TVNZ, in a way that can be edited into an 8 second sound bite. That's why I'm paid the big bucks!

Comments (21)

by XChequer on February 09, 2012
XChequer

With respect Andrew, so is screening a documentary, such as the one on poverty screened on TV3 thast caused such a ruckus, a couple of weeks before an election that so  closely follows the oppositions stragey and attack lines.

Granted that there are technical differences (where would the law be without "technicalities") i.e not aligned with a particular party, the documentary didn't feature an MP or PM to which I accept these arguments and note that they arn't compatible.

However, it begs further thought when any transmission, be it radio or TV, has an identifiable agenda and falls within the proscribed period before an election such as is descibed in the Broadcasting Act. That seems to me to be what the commission is saying - that, content aside, the act of being on the air itself at such a time means that it has an agenda and therefore makes it inherently political and therefore counts itself against the law. 

The same could therefore be applied to the TV3 Doco. It has an agenda, to highlight a problem in New Zealand soceity as regards to poverty that so closely resembles some political parties manifesto and rhetoric, and it is screened at such a time as to put itself in the period proscribed by the law in the leadup to an election.

The argument will be made that it was not promulgated by aforementioned political parties. However, close scrutiny of the documentary film makers would probably bare some links with political parties (?). The point though, as in the case with the Prime Minister, is the timing and intention which a good argument could be made that the the two situations have more in common than some might think.

Or not.

This maybe why I'm NOT paid the big bucks.

by Ben Curran on February 09, 2012
Ben Curran

I'm guessing the intensity of the links to political parties would be important. It's a little tricky in NZ not to have some connection to someone who involved in politics.

If the documentary was made by a career documentary maker or a film student or whatnot, fine.

If it was specially commissioned by or produced by saaaay a PR secretary of a senior shadow/minister I think there would be cause to call it into question.

Context being the important thing I presume.

by Andrew Geddis on February 09, 2012
Andrew Geddis

XChequer,

There is an exception to the ban on screening election programmes as follows: "Nothing in subsection (1) restricts the broadcasting, in relation to an election, of news or of comments or of current affairs programmes." Hence the reason why, even if it were appearing to encourage a vote for a particular political party, the doco was allowed. I don't think the Radio Live programme could fall into that category ... or could it?

by David Savage on February 09, 2012
David Savage

I think it's naive to think people choose to vote purely based on policy. As soon as you look at findings from neuroscience, it's clear that the 'personality' of a leader plays a significant part in a decision to vote for them (or not). The more we experience 'rapport' with someone, the more likely we'll align with them (but not always) - and one effective way a leader builds rapport is not through policy, but personality, i.e. sharing their interests that others will share and appreciate.

Election time is hugely busy for politicians, they just don't take an hour out of their timetable to do something non-election related - Most politicians are communication trained, and interviews like the one you're  discussing are as much part of the election campaign as a policy announcement.

Another clear gap here is that the electoral commission needs far more understanding around social neuroscience and communication psychology.

by stuart munro on February 09, 2012
stuart munro

It's all a bit sad really. Used to be we got political leaders that understood and shared a few of the aims of their societies, they could hold a kind of 'fireside chat', and it wasn't the end of the world.

Now we are governed by scum-sucking financial predators who farm us for tax the way they used to farm sheep before they sold their farms offshore. The more we curtail these tyrants' powers the better.

by Andrew Geddis on February 09, 2012
Andrew Geddis

@David: "Another clear gap here is that the electoral commission needs far more understanding around social neuroscience and communication psychology."

Why do you think this. David? After all, the Commission believed the show was an "Electoral Programme", so it would seem to agree with your assessment of the effect on voters. Doesn't that indicate it understands the issue (even if not the formal academic literature)?

 

by Graeme Edgeler on February 09, 2012
Graeme Edgeler

Right - that's it for now. Got to run off and say all this on camera to TVNZ, in a way that can be edited into an 8 second sound bite. That's why I'm paid the big bucks!

Good to see I'm not doing all the heavy lifting!

by Scott Chris on February 09, 2012
Scott Chris

XChequer says:- "so is screening a documentary, such as the one on poverty screened on TV3..."


An invalid comparison. Had Phil Goff introduced the doco you may have had a point. Key on the other hand was blatantly promoting "brand Key" which is an integral part of the National Party's current strength. 


by Graeme Edgeler on February 09, 2012
Graeme Edgeler

And if the value of the hour's worth of radio time is more than $30,000, why wasn't it disclosed prior to the election?

1. The obligation on a party secretary disclose a large donation within 10 working days only arises after the donation is received by the party secretary. When did this happen? Has it even happened yet?

2. Maybe John Key will include it in his donation disclosure return? The obligation to disclose large donations is only in respect of party donations, candidate donations just have to be disclosed the once, well after the election.

The Electoral Commission must have reached a different conclusion on the meaning of "election programme" in the Broadcasting Act to that reached by the Broadcasting Standards Authority in this decision. Which shows that the matter is not a completely clear cut one.

The Broadcasting Act has a dual definition of the words "election programme", one that applies to the BSA and one to the Electoral Commission, and they different in such a way that I consider that the BSA's conclusion was correct. Their reasoning was not, although I would note that the BSA did undertake an explicit Bill of Rights analysis, which the Electoral Commission did not.

by David Savage on February 09, 2012
David Savage

@Andrew - Great point, I stand corrected. I guess I'm confused as to why it's referral and not a definitive finding, if I understand you correctly, it has to go through a process with the Police and the court to be definitive?  

by Andrew Geddis on February 09, 2012
Andrew Geddis

@Graeme

Regarding the difference between the BSA decision and the Electoral Commission's, I think you are seeing differences that the BSA is not aware of. Quite clearly it saw itself as asking exactly the same question as the Commission ... was this an Election Programme as defined in s.69? It's just they read the intent of and consequent approach to that definition in a different way. Hence the matter not being "clear cut", if two different bodies can ask the same question and get different answers.

by Andrew Geddis on February 09, 2012
Andrew Geddis

@David,

Right ... the Commission has formed its opinion ("this was an Election Programme"). Now it is up to the Police to decide if they agree with this view and that it is worth prosecuting the matter, then for the court to give its interpretation of the law.

by XChequer on February 09, 2012
XChequer

Chris,

You're missing my point. Is there any correlation between intention i.e. to sway voters mind on a particular issue (or issues) and timing i.e. in the three month lead up to the election as content is moot? You can't just say that Key was blatantly electioneering because unlike other politicians, such as Winston Peters who have had their own hour of DJ'ing on RadioLive, he never once asked the listeners to vote for National or himself - the defense that RadioLive themselves will probably use. Also, whether or not Key is "integral" to the National Party is a subjective and unable to be substantiated and therefore is irrelevant to any investigation or court proceedings.

I'm not "pushing a line" here - just speculating on the law as it pertains to the two incidents.

by Graeme Edgeler on February 09, 2012
Graeme Edgeler

Regarding the difference between the BSA decision and the Electoral Commission's, I think you are seeing differences that the BSA is not aware of. Quite clearly it saw itself as asking exactly the same question as the Commission ... was this an Election Programme as defined in s.69?

I wasn't disputing that they disagreed, or arguing that it was clear cut. I was just noting that I considered that the differing conclusions (i.e. results) of both bodies was probably correct. I expressly note that I disagree with the reasoning of the BSA (which I did at the time, but didn't make a big deal of because they got the right result and there wasn't a standards issue anyway). 

I would note that I am seeing a difference that the BSA has been aware of in the past. At the 2008 election, its advice to party secretaries/financial agents was that complaints under the election programmes code could only be considered in respect of broadcasts occurring from writ day.

There is clearly a dual definition, and given what it actually is, I think that the 2008 advice was correct, and as the law has not changed around this matter, was suprised when they used different reasoning this time 'round. "Right answer, wrong working" as my science or math teachers may once have said.

The BSA certainly came to a different view on the interpretation of s 69 from the Electoral Commission, but as the BSA shouldn't even have been addressing it, I'm happy to go with the EC (which is the body effectively charged with interpretting s 69) on this one until we hear from a Court.

by Andrew Rudolph on February 09, 2012
Andrew Rudolph

XCheqeur

"whether or not Key is "integral" to the National Party is a subjective and unable to be substantiated and therefore is irrelevant to any investigation or court proceedings."

His face was on ALL National election bill boards, this was done to link all candidates with John Key cause he was their 'Brand'.

That was OBVIOUS.

 

by Andrew Geddis on February 09, 2012
Andrew Geddis

Graeme,

Why doesn't the BSA have a role in determining the meaning of Electoral Programmes under s.69, in order to determine if the Election Programmes Code applies to the programme in question? On your analysis (which may well be right - I'm just trying to work through it), there appear to be three categories of "Programmes" under the Broadcasting Act.

(1) Not Election Programmes (which are not subject to the BSA oversight under the Electoral Programmes Code);

(2) Election Programmes broadcast under Part 6 of the Broadcasting Act (which are subject to the BSA oversight under the Electoral Programmes Code);

(3) Election Programmes not broadcast under Part 6 of the Broadcasting Act (which apparently wouldn't be subject to the BSA oversight under the Electoral Programmes Code because the BSA doesn't have jurisdiction over them (see BA 1989, ss 2(1) & 21)  ... but what sort of programmes could fall into this category? How can you legally broadcast a programme that meets the definition of "election programme" in s.69 without meeting one of the exceptions in s.70(2) or (3), thus broadcasting it "under Part 6"?).

Point being, let's imagine this hypothetical. John Cambell, in the midst of a Cambell Live episode on sime issue just 2 weeks out from the election, blurts out "Gosh, this Government's just been terrible on this issue. People would be crazy to let them back in. Their record is undeniably awful." Someone then complains to the BSA that his statement is in breach of the Electoral Programmes Code ... say ...

Standard E2 Distinguishing Factual Information from Opinion or Advocacy

An election programme may include debate, advocacy and opinion, but factual information should be clearly distinguishable from opinion or advocacy.

Now, this statement doesn't breach s.70 because of s.70(3) - it's part of a "current affairs programme." But in order to determine whether or not the Electoral Programmes Code even applies to John Campbell's show, doesn't the BSA have to decide if it is an "election programme"? Can it really just say it wasn't broadcast under Part 6 (because if it wasn't, then what was it broadcast under?)

Oh, finally - you really "happy to go with the Electoral Commission" even though it doesn't mention the NZBORA in its analysis?

by Graeme Edgeler on February 09, 2012
Graeme Edgeler

Can it really just say it wasn't broadcast under Part 6 (because if it wasn't, then what was it broadcast under?)

Why does it have to be broadcast under anything? What is The Wot Wots broadcast under?

The whole scheme is problematic, but I think that the best interpretation we're likely to get is that a programme is broadcast under Part 6 when the broadcast falls within s 70(2), yes, that does rely on the s 69 definition, but not in a way that is likely to affect BSA consideration.

Oh, finally - you really "happy to go with the Electoral Commission" even though it doesn't mention the NZBORA in its analysis?

For the moment, yes, because the result seems NZBORA consistent, especially giving due deference to the policy of Parliament in crafting s 70 of the Act (helping with free and fair elections etc.). I'm not a fan of Part 6 of the Broadcasting Act, but the EC has given a considered ruling that has weighed a number of considerations. It would have been better if NZBORA considerations were expressly noted, but this wasn't exactly a once-over lightly.

by XChequer on February 09, 2012
XChequer

Andrew,

By how much? 10% of their strategy, 50%? 80? 

What I'm saying is that it is subjective therefore unquantifiable so as to be meaningless when asked to weigh one hour of radio time in which the election was not mentioned (can't remember if it was implied, perhaps someone else remembers) and, it could be argued as Andrew G's post above, that the guests had an element of "current affair" type programming to the show.

I'm not arguing that John Key is part of their brand - as you say that is obvious - however to quantify the effect of John Key NOT electioneering during the time of the enforced period is nonsensical.

Personally, regardless of the Police investigation, I think the possibility of a successful prosecution to be incredibly small, given different interpretations and differing precedents. It does illustrate the point that the law is open to different and distinct interpretation and the legislation could be termed "bad".

by Tim Watkin on February 09, 2012
Tim Watkin

XChequer, there was mention of politics at the end of the hour when Paul Henry was coming on and talked with Key briefly. Key ducked around it, but it was mentioned.

But I don't think for a second that anything a PM does within a couple of months of an election can be deemed non-political. David makes the good point that if Key hadn't thought it was good for him and his party, he wouldn't have done it. This is not a man to waste time. Did he stop campaigning or being party leader for that hour? Of course not. It can't NOT be political.

I guess you're trying to find a legal line in there and maybe there's an answer in Andrew's comments – this wasn't news, current affairs or commentary. That's why the comparison with the doco doesn't work – it was a single issue programme filtered by a professional journalist not representing a party. A party leader presenting himself as a likeable bloke who's mates with popular, winning New Zealanders and billionaires (don't forget the Branson appearance) is simply in another league. With Key there was no filter, news or challenge, just a first-person performance.

I'll let our friendly lawyers keep arguing as to the correct definition of an "election programme" and the likelihood of a police charge, but make no mistake... it was a party political programme.

by Andrew Geddis on February 10, 2012
Andrew Geddis

@Graeme,

Much as it causes me great pain and a considerable amount of ground teeth to say this, but you appear to be right.

Do not make a habit of this, please.

by william blake on February 10, 2012
william blake

John Key - National Party - talkback radio, the bard of Avon has something to say on the subject (from King John...)

 

Therefore, to be possess'd with double pomp, 
To guard a title that was rich before, 
To gild refined gold, to paint the lily, 
To throw a perfume on the violet, 
To smooth the ice, or add another hue 
Unto the rainbow, or with taper-light 
To seek the beauteous eye of heaven to garnish, 
Is wasteful and ridiculous excess.

Post new comment

You must be logged in to post a comment.