Was “The Prime Minister’s Hour” on Radio Live a prohibited election programme? The Electoral Commission says “yes” – the Broadcasting Standards Authority says “no”. And the row needs to be resolved.

Broadcasting Standards Authority chair Peter Radich blames the Broadcasting Act. He says it is “old and open to interpretation” He is right on both counts – but wrong on the central issue raised in the row over Prime Minister John Key’s hour-long stint as a show host on Radio Live in the run-up to the last election.

His Authority and the Electoral Commission have looked at “The Prime Minister’s Hour” against the same sections of the Broadcasting Act and come to radically different conclusions.

Section 69 of the Act defines a prohibited “election programme” as a programme that “encourages or persuades or appears to encourage or persuade voters to vote for a political party or the election of any person at an election…”

The Broadcasting Standards Authority says it is “satisfied that the intention of Section 69 is to capture those programmes which overtly and directly encourage, persuade or advocate voters to vote for a particular political party or candidate...If the legislature had intended to prevent politicians from being presented or exposed in a broadcasting context when they are not accompanied by any direct political type statements, we would expect there to have been direct provision for such effect, rather than, at best, a possible interpretation to such effect.”

The Electoral Commission says “the show did provide an opportunity for Mr Key to raise his personal profile unfettered by the questioning or challenge typically present in a news, comment, or current affairs programme. Moreover, the show involved an opportunity for Mr Key to associate himself with high profile individuals of whom many New Zealanders would have high opinions. In all the circumstances, it is reasonable to conclude listeners would regard the show as appearing to encourage or persuade voters to vote for Mr Key’s party.”

The Commission cut to the nub of the issue when it said: “the over-riding concern of complainants is that the show was an opportunity for Mr Key to promote himself and his party in a way that other parties have not been afforded at a critical time just two months out from the election…”

The Broadcasting Standards Authority seems to have missed the fundamental importance of “fairness” completely – a serious error when its own responsibilities under the Act include encouraging broadcasters to produce “fair and accurate programmes and procedures for correcting factual errors and redressing unfairness”.

The fact that a Radio Live host could make the comment on air that “the Labour Party is furious that you [John Key] are on and they’re not” and the Authority dismisses it as “the sort of banter” to be expected in a robust talkback environment confirms that it has a flimsy grasp on the doctrine of fairness.

The Authority also undermines its own judgment when it makes the following concession in reporting its findings: “We can of course see that some political advantage will accrue to the Prime Minister and the party to which he belongs from exposures of this kind. It is not for us to say whether this should or should not be permitted; we are required to deal with the law as it stands … If a different outcome is seen as desirable, then this is a matter for the legislature and not for us.”

If the Authority understood that political advantage would accrue to the Prime Minister from his hour-long Radio Live show in the run-up to the election, then it should have applied the law as it stands in sections 69 and 70 of the Act and declared that the show “appears to encourage or persuade voters to vote for a political party” and was a prohibited election programme.

There is no question that the Broadcasting Act and the media provisions of the Electoral Act need review and alignment. The reports produced by the Electoral Commission and the Broadcasting Standards Authority both define new issues requiring consideration and areas of the two acts requiring clarification.

The Electoral Commission suggests that programmes that are hosted by a party leader or candidate, at the invitation of the broadcaster in close proximity to an election, that give the party leader or candidate an unfettered opportunity to raise their profile in broadcast outside the ambit of a news, comment or current affairs programmes could be identified as prohibited election programmes. An amendment to the Broadcasting Act along these lines could easily be achieved through the review of the media standards regulatory framework that is currently in train.

Other desirable amendments to the Act would ensure that complaints about election programmes are dealt with expeditiously by one statutory body instead of two, and that the body required to pass judgment on complaints about election programmes is also authorized to instigate prosecutions instead of referring them to the police for consideration.

In the 2008 election, two complaints about talk-back shows hosted by politician-candidates – Winston Peters and Shane Jones - were upheld by the Electoral Commission and referred to the police. Both Peters and Jones had directly encouraged voters to support their parties – but no action was taken against the broadcaster responsible for the shows.

It seems most likely that the Commission’s case against Radio Live over The Prime Minister’s Hour will also end up in the police “too hard” basket. Two statutory bodies dealing with the same complaint have come to different conclusions. The Prime Minister did not directly solicit voter support or slag his political opponents. Any prosecution will venture into the grey world of “appearances”, and the Electoral Commission itself concedes the case raises difficult legal questions about the “ambit and application of the statutory tests and possible conflict between them”.

The bottom line is that the current law on “election programmes” is in a mess – and any self-respecting democracy would have it cleaned up before voters return to the polls.

Comments (28)

by David Beatson on February 19, 2012
David Beatson

For absolute clarity about prohibited election programmes, I should add that the only exemptions from the prohibition in the Act are for the opening and closing addresses for political parties in time on TVNZ and Radio New Zealand allocated by the Electoral Commission; election advertising by political parties paid for with money allocated by the Electoral Commission; and election advertising relating to a single constituency candidate (whose election spending is governed by the Electoral Act).

by Graeme Edgeler on February 19, 2012
Graeme Edgeler

Andrew and I were going through this dichotomy over on his thread about the decision, and in the end we appeared to come to a consensus:

The BSA got the right answer, but asked the wrong question.

The BSA should not have been applying the section 69 test. There are two different definitions of "election programme" in the Broadcasting Act, and the BSA should have been applying the definition in section 2. Had it done so, it would have correctly determined that the programme was not an election programme (for its purposes), and so not assessed it against the Election Programmes Code (which it didn't breach anyway).

I hope I'm not overplaying his view, but the Standard's Mike Smith (the former Labour Party general secretray, not the one-tree hill chopper), seems to view this as having the effect of the BSA providing cover for the National Party, and it does seem odd that the Authority would:

1. make a decision when it wasn't its place, and it didn't need to to resolve the question before it;

2. apply the section 69 definition, when the section 2 definition is clearly the one related to BSA functions;

3. not recognise that the advice it gave parties at previous elections was that it could not consider complaints under the election programmes code for programmes that did not air in the "election period" (from writ day to election day)

For myself, I suspect this shows one of the problems with very small government agencies. There had been a near wholesale change in personnel between the 2008 election and the 2011 one (on the Authority itself, but also in the back office). I suspect no-one was aware of the interpretation that had been applied (in my view, correctly) at previous elections (it takes a while to get to when working through the Act, as Andrew's thread shows), and so someone gave it a fresh go, after looking at the Election Programmes Standard, without reading the Act in full.

The simple point is that the BSA could have said either:

"there is no jurisdiction for us to consider this programme under the Election Programmes Code because it was broadcast before writ day."

or

"the Broadcasting Act has a complex definition of 'election programme' which bans their broadcast before writ day. That is a matter for the Electoral Commission. We have jurisdiction over broadcasting standards, and in our view, if this was an election programme, it would not have breached the Election Programmes Code."

And they'd have avoided the whole issue.

On the more general question, part six of the Broadcasting Act is a dog, possibly the worst law currently on our books (very close to it, anyway), but this bit, while complicated, is soluble: the BSA sticks to broadcasting standards, and the Electoral Commission deals with Part 6.

by David Beatson on February 20, 2012
David Beatson

Graeme, as I read the Act, section 2 defines an election programme— “(a) in the definition of advertising programme and in sections 8 and 21, means a programme broadcast under Part 6”; and “(b) in Part 6, has the meaning given to it by section 69.” It seems to me section 69 is the definition that should be used by both the Commission and the Authority.

 Section 8 (1B) states:”A complainant may refer the complaint to the Authority if the complainant—(a) made the complaint under section 6(1)(a); and(b) is dissatisfied with—(i) the decision of the broadcaster; or (ii) the action taken by the broadcaster." That suggests the Authority is empowered to consider election programme complaints.

Also, as I read section 70, election programmes as described in section 69 – with the particular exemptions I’ve noted – are prohibited both “within and outside an election period”. Whether it’s an election period is irrelevant.

Please correct me if I’m wrong – but I don’t think the Authority could claim the complaint was outside its jurisdiction.

by Andrew Geddis on February 20, 2012
Andrew Geddis

David,

As Graeme hinted at, he earlier bludgeoned me into submission on this point with his superior knowing about stuff. 

The key issue is what does "a programme broadcast under Part 6” mean in the definition of "election programme" as it applies to section 8. Graeme argues (I now think rightly) that it confines the BSA's oversight to the election programmes that parties run using the time and money given to them by the Commission under part 6 (as well as any individual campaign ads bought by candidates in the window allowed by part 6). Otherwise, you get a circular interpretation which says "election programme means a programme broadcast under Part 6, which defines an election programme in s. 69, which means it has that meaning." Which then makes para. (b) of the definition redundant (i.e. why didn't Parliament just say in s.2 "election programme means what it says in s.69"?)

Point being - the BSA is meant to have an oversight role for parties'/candidates' advertising to make sure their messages can be reviewed/responded to in a timely fashion if people think they are somehow in breach of standards (as the BSA has developed these). It isn't meant to be the overall enforcer of special election-time broadcasting standards on everything a broadcaster puts out.

As for the broader point of who is right about what an "election programme" means in s.69 - the BSA or the Electoral Commission - I think the Commission's view is de facto the one people will take unless and until a court says different. In part, this is because the Commission has the job of looking at s.69 directly (as Graeme has explained). But more importantly, the Commission is the body that has a duty to refer people to the police. And I don't think broadcasters really want this to happen to them, even if the Police don't subsequently prosecute ... it's running a risk of hefty legal fees (let along potential fine). So, a sensible broadcaster will tailor their behaviour to the Commission's view, because that's where the greatest risk of bad consequences will come from.

by David Beatson on February 20, 2012
David Beatson

I remember when Section 8 was introduced - age has some advantages. Section 8 (1) says a complainant must refer the complaint directly to the Authority if the complaint is that an election programme did not meet 1 or more of the standards in section 4(1)(a) to (c) and (e).

It was introduced to enable a complainant who has a problem with an election proramme to by-pass the normal procedure of making his or her complaint to the broadcaster in the first instance and then to refer it to the Authority if he/she finds the broadcaster's response unsatisfactory. It was intended to speed up the consideration of election programme complaints so they could be addressed within the election period. I don't think it was designed to limit the Authority's consideration of these complaints to the specific activities exempted from the general prohibition on election programmes. It also enables the Authority to consider complaints about advertising by political parties which are normally dealt with by the Advertising Standards Authority.

by Graeme Edgeler on February 20, 2012
Graeme Edgeler

I remember when Section 8 was introduced - age has some advantages. Section 8 (1) says a complainant must refer the complaint directly to the Authority if the complaint is that an election programme did not meet 1 or more of the standards in section 4(1)(a) to (c) and (e).

I remember when it was introduced too. It was part of a package of minor-ish changes to the Broadcasting Act that were introduced via the Electoral Finance Bill with effect from 2008. The same piece of the legislation (the Broadcasting Amendment Act (No 2) 2007) also introduced the dual definition of election programme.

by Steven Price on February 20, 2012
Steven Price

David,

Let me make a couple of other points.

You say that the BSA was "wrong", in "serious error" and has "a flimsy grasp on the concept of fairness". I'm afraid it's your grasp that's flimsy. The standard doesn't require some sort of generalised political fairness by broadcasters, but that they "deal fairly with any person or organisation taking part or referred to" in a particular programme. As the BSA explains in its decision, Labour was barely referred to at all during that John Key hour, and that peripheral reference was not such as to trigger the standard. That seems right to me; nor do you dispute that particular conclusion. You seem to seem to want the BSA to apply some other standard of fairness than the one that's in the code.

Your extraordinarily broad interpretation of the fairness standard also raises questions about the Bill of Rights. That usually requires powers that restrict speech to be construed and applied narrowly rather than expansively. (I'm simplifying grossly here: what is required is that the interpretation and application be demonstrably justified. But I'd be surprised if such a far-reaching interpretation could be justified). I think in other contexts, you'd be all in favour of that.

The other issue that the Bill of Rights is relevant to is the definition of election programme. Putting aside (as we shouldn't) Graeme's and Andrew's point that the BSA shouldn't have even gone into it, any government agency that did go into it should surely consider the Bill of Rights free speech arguments before defining the reach of the section widely.

The BSA did. The Electoral Commission didn't. That's not to suggest that the BSA's analysis was correct: the starting point in interpreting the statute should have been the approach in R v Hansen, I think. There would have been a very interesting issue about whether the broader interpretation of electoral programme - the one that included the John Key hour - was demonstrably justified. Maybe it was. My point is that at least the BSA considered the Bill of Rights and was concerned not to construe its powers too broadly.

by David Beatson on February 20, 2012
David Beatson

Steven - I’m all for freedom of speech. However, the whole notion of regulating “election programmes” is predicated on the need to maintain a reasonable balance of opportunity between party leaders, political parties and candidates contesting an election. It is a generalised principle of fairness. I think a broadcaster who invites a political leader to host an hour of airtime in a format designed impress the public with his general sociability and great, first name national and international connections two months out from an election while depriving other political leaders of the same opportunity is being unfair. I say give us more of this freedom of expression – not less.

by Tim Watkin on February 20, 2012
Tim Watkin

Other desirable amendments to the Act would ensure that complaints about election programmes are dealt with expeditiously by one statutory body instead of two, and that the body required to pass judgment on complaints about election programmes is also authorized to instigate prosecutions instead of referring them to the police for consideration.

I like the sound of those ideas. It's too easy for politicians to take ignore the rules if they think the short-term gain is worth it. If there are going to be rules around elections, they have to be enforceable within the timeframe of that election, of they're meaningless.

Steven, your tone suggests you're at risk of charging off one some freedom of speech high horse. Even in spelling out the legal definitions, the BSA acknowledges the political advantages of the broadcast. You seem to be saying 'this is the law as it stands, deal with it (perhaps even praise it for it freedoms)'. David's saying the law needs changing to be fair and makes some suggestions as to how.

Surely you'd acknowledge that free speech is only fair if it's afforded to all (which I take as David's point) and not pretending to be something it isn't (ie it was campaiging, and probably of a more effective type than blatantly asking for people's votes). I'm all for more politics and debate in a campaign, but is this the best we can do? Just letting politicians talk at us and show off their famous mates? And isn't the law flawed if it can't be applied and enforced within the campaign?

by David Beatson on February 20, 2012
David Beatson

Thanks Tim. I'll try and put my view is simply and clearly as I can. The offence is not in the provision of the opportunity to Prime Minister Key to host a programme that appears to encourage voters to support him and his party because of his general sociability and first name relationship with persons of national and international significance in the run up to an election. It is in the denial of the same opportunity to other party leaders contesting that election. This is a denial of their rights to the freedom of expression that they should enjoy in a free and democratic society in accordance with Section 5 of the Bill of Rights. Thus, it is unfair. It is the duty of the Broadcasting Standards Authority under the Broadcasting Act to encourage the development of codes appropriate to the type of broadcasting being undertaken that relate to fairness in programmes and procedures for redressing unfairness. The current code seems to be deficient. The Electoral Commission has offered a solution. Another would be to require a broadcaster who wishes to mount programmes in the style of "The Prime Minister's Hour"  in the run-up to the election to provide a similar opportunity to other party leaders.  

by Graeme Edgeler on February 21, 2012
Graeme Edgeler

Changing the codes would not help. You need to change the Act. Had Radio Live offered the same opportunity to other party leaders, they'd have just broken the law multiple times.* This isn't about finding solutions. It's about what's criminal and what's not.

In the Broadcastings codes, fairness is about content, the law says that obligations of balance don't apply to election programmes, and how could they, when National and Labour get $1.18m each and 32 minutes of free time, and the Conservative Party gets $20,800 and 90 seconds?

*assuming the interpretation offered by the EC is maintained in the Courts.

by Graeme Edgeler on February 21, 2012
Graeme Edgeler

Apologies, misread the tables: the Conservatives got 2.5 minute free broadcasting time.

by Graeme Edgeler on February 21, 2012
Graeme Edgeler

And National and Labour got 36 minutes each.

by Andrew Geddis on February 21, 2012
Andrew Geddis

"The current code seems to be deficient. The Electoral Commission has offered a solution. Another would be to require a broadcaster who wishes to mount programmes in the style of "The Prime Minister's Hour"  in the run-up to the election to provide a similar opportunity to other party leaders."

I agree with Graeme's comments on this - even had Radio Live said to Phil Goff/Meteria Turei/Winston Peters "hey ... do you guys want an hour on the radio to talk about cats and Coro St?", the Commission still would say that the Broadcasting Act has been breached. It's just (1) there would be a bunch more breaches of the Act, but also (2) there may have been no complaining to the Commission and so it overlooked the issue.

However, on David's proposal that "Another [solution] would be to require a broadcaster who wishes to mount programmes in the style of "The Prime Minister's Hour"  in the run-up to the election to provide a similar opportunity to other party leaders." I can see this causing real line drawing problems, in the same way as selecting participants for the leaders' debates currently causes problems. Should Colin Craig get the full hour (or any time at all)? If not, why not?

Best solution, imho, is that if we want to keep the broadcasting arena "fair" in the run-up to the election is to lay down a marker to the companies as to how they can/can't use politicians to drive up their ratings (which is what Radio Live were trying to do) and then sort out the dogs breakfast that the Broadcasting Allocation represents. 

by David Beatson on February 21, 2012
David Beatson

I also agree with Graeme - we need a law change. Since the Government is already committed to reviewing media standards regulation - a process that has to embrace the Broadcasting Act - it has the opportunity to have the work done and dusted before the next election. Andrew, the Electoral Commission already has a process for allocating time for permitted election programmes between the parties (as Graeme points out it produces some pretty peculiar results) but the general principle has been established and can be refined to produce a practical and consistent form of regulating the "employment" of party leaders in pre-election broadcasts.

As another example of the current inconsistencies, the "election period" runs from writ day - but the "regulated period" in which campaign spending by parties and candidates is monitored by the Electoral Commission ran from 26 August last year - well before writ day and 30 September when the Prime Minister's Hour was aired. Why not develop a regime that takes effect for the "regulated period" instead of the "election period"?

by Graeme Edgeler on February 21, 2012
Graeme Edgeler

(2) there may have been no complaining to the Commission and so it overlooked the issue.

I'm pretty sure Labour's wasn't the only complaint. After 2005, there are now a bunch of people ready to complain to the EC over just about everything.

then sort out the dogs breakfast that the Broadcasting Allocation represents

Easy. The next time the Commission makes an allocation it looks at the criteria and says "National, you've got more members than the minor parties, and did better at the previous election, and have more MPs etc. you therefore have less need of a broadcasting allocation than a minor party without the reach those things bring, to make the election fair we therefore allocate more money to the minor parties and the least to you."

by Andrew Geddis on February 21, 2012
Andrew Geddis

@David,

Sure, Part 6 of the Broadcasting Act is a mess. But I don't think pointing to the Commission's already existing "process for allocating time for permitted election programmes between the parties" and suggesting this be used as a template for regulation to cover all access to media by political figures is the way to go. For one thing, it might well LESSEN the amount of coverage given to smaller parties and their leaders ... was the attention paid to Winston Peters post-tea tape in keeping with his status as a minor party ? For another, it's setting up another set of rules that (as Graeme points out) feeds the bunch of people ready to complain to the EC over just about everything.

Point being - the Radio Live show was a pretty unusual occurance ... which is one of the reasons the Commission felt able to say it crossed over into being an election programme. I doubt we'll see its like again - and if that is the case, should we be looking to completely rewrite broadcasting regulation on the basis of an unusual one-off event?

@Graeme,

True - that would be the simplest way to have MPs from both major parties decide the entire law immediately must be scrapped (once the judicial review proceedings were over, of course!)

by Steven Price on February 21, 2012
Steven Price

David and Tim - yeah, sorry about the high horse bit. My point was narrow. David was slagging the BSA and was basing his criticism of their decision on a wrong premise. Saying that what RadioLive did was unfair (which, actually I agree with) is not the same as saying they breached the fairness standard, properly understood. He was being - yes, I'll say it - unfair to the BSA. That got my goat.

I didn't mean to call into question any of his other points, or the need for reform.

But let me take umbridge at Tim's extraordinary suggestion that "free speech is only fair if it's afforded to all". You surely can't mean that, at least in the context of access to someone's broadcasting platform. Do my free speech rights entitle me to go on Q and A if I think I've got a relevant opinion? Even if I'm a candidate?

How is this principle of access that you both claim is part and parcel of the right to freedom of expression to operate? Andrew has touched on this point. Every political story contains someone's views about something. Does this notion of free speech and fairness require equal airtime to be given to all parties every time this occurs? Even minor parties? Where do you draw the line? (And incidentally, why stop at political parties? Why not lobby groups? People who might feel the story reflects badly on them? Experts who've conducted research in the area. Uncle Bob who thinks he knows a thing or two about that. Do they have rights of free expression that entitle them to be featured? Only when it's "fair"? Who decides?)

The question of access to public platforms is one that has vexed free expression thinkers for some time. Let me say at once that I agree with your general sentiment. I'm in the camp that says free speech is about promoting the flow of information, not just about individual rights. I've been saying for some time that I think balance and fairness requirements actually foster free speech as well as restricting it. Broadcasters tend to be in the "free speech is about individual rights" (ie their rights) camp and see balance requirements as nasty restrictions on their speech. But they (and complainants, and the BSA) overlook the argument that requiring balance actually bolsters the reasons we value speech, most especially to promote the search for truth and advancement of knowledge and the facilitation of self-government through information and debate.

In Bill of Rights terms, this means that balance and fairness requirements can be more readily demonstrably justified as restrictions on speech. So I rather like the Balance requirement in the broadcasting codes (now renamed "Controversial Issues") and think the BSA generally applies it too narrowly. I'd prefer to see the law work toward establishing rights of reply (especially online), and at least incentivise these over defamation proceedings. In the election context, I favour regulation of parties ads and broadcasters' coverage for accuracy and fairness, even though that is often regarded as dicey by those who point to the fundamental importance of political speech. I'm cool with a rule that outlaws what Radio Live did here, or requires balancing content, but we'd have to be pretty careful about how to frame it.

But saying that a privately owned radio station that broadcast's one politician's speech and not another's breaches that other person's freedom of expression as a general principle: that's just silly.

by David Beatson on February 21, 2012
David Beatson

News and current affairs programmes have been exempted from regulation under "election programme" rules. Long may it stay that way. However, Radio Live's handling of the "Prime Minister's Hour" shows why we need to have a new approach to see fair play in the run-up to an election. The politicians in Parliament are going to want to regulate each others' election programme broadcasting activities and the amount of funding spent on TV and radio advertising. They enjoy the greatest advantage of all - incumbency - and access to public funding to publicise and promote their achievements between elections. I can't see them giving it up - so let's all bombard the upcoming review of media standards regulation to see the job's done properly.  

by Tim Watkin on February 21, 2012
Tim Watkin

Steven, I was too loose in my wording. As David suggests, I wasn't including current affairs in that principle because the Radio Live hour was nothing to do with news or current affairs – the principle of journalistic freedom and the basic need to follow the story is paramount in that world. I was merely agreeing with David's point that the person in charge shouldn't exclusively get the political advantage of a free hit, which is exactly what that hour was.

My head's hurting with all the legal points so I'm retreating from those, except to say that I have no doubt that the Radio Live hour DID "encourage or persuade voters to vote for a political party or the election of any person at an election…” Key simply wouldn't have spent time on it otherwise. And if that's the standard, then it was in breach.

As for the whole question of who gets what time – the media does constantly wrestle with the effort to balance news and fairness. Obviously the lot in government can dominate the news, cos they've got the power to actually do stuff. And if we want a media that challenges said power, that shuts out small voices to a large degree.

However fairness is always considered. We had every polling party leader on Q+A in some capacity last year, most during the campaign. We even had Colin Craig on (slightly prior to the campaign, from memory), which is more than some can say. So no, not equal air time, but some access. As for who gets to decide, well, it's the imperfect journalists within the fencing of the law.

For example, TVNZ drew a line for who should get onto its election debates – polling 3% or a seat in parliament. It was drawn early and enforced consistently, which seem to be crucial when it comes to fairness.

You're right with your other points Steven – I keep banging on to people that political coverage is finite. We have our 54 minutes a week, and that's it. We can go more in-depth, but have fewer voices on. Or we can offer more people access, but not have as much depth. You can't have it all. So the line is drawn for us, in that regard.

Another point that's often forgotten outside the media, is that we try to give balance 'across programmes'. Q+A might be damned for having Peters and not Turei, but she might get time on Close Up or 6PM etc. You can't always offer complete balance within 54 minutes. And as I increasingly realised last year, in this debate "there are only different ways to fail".

But it's always a debate worth having, cos it matters. There's been mention of Peters and the tea tapes, but let's not forget the minor parties' debate. TVNZ opted for inclusion rather than exclusion and had Peters on, and I've no doubt that appearance gave him a bump.

by Andrew Geddis on February 21, 2012
Andrew Geddis

@Tim: "For example, TVNZ drew a line for who should get onto its election debates – polling 3% or a seat in parliament. It was drawn early and enforced consistently, which seem to be crucial when it comes to fairness."

Except, of course, when you didn't.

"NZ First leader Winston Peters' chances of returning to Parliament have been given a boost after Television New Zealand ruled he can participate in its minor party leaders debate.

...

NZ First got 2.2 in last week's TVNZ-Colman Brunton poll. However, the latest poll released last night put support for NZ First up 0.7 points to 2.9 per cent, just 0.1 off TVNZ's target.

TVNZ political editor Guyon Espiner said when pollsters rounded up the scores, NZ First was on 3 per cent.

"Technically NZ First is just short, but in a poll of 1000 voters it is the difference between 29 and 30 people saying they would give NZ First their vote.

"It was so close we decided to err on the side of inclusiveness and we will be issuing an invitation to Mr Peters to participate in the debate.""

A laudable and pro-free speech move, I'm sure. But why are 29 voters out of 1000 enough, when 25 wouldn't be? Answer ... when they'd vote for Winston Peters AND HE'S JUST SO BLOODY ENTERTAINING ON THE TV!!!!!

 
by David Beatson on February 22, 2012
David Beatson

Another point worth noting in this debate is that Radio Live was not planning to make "The Prime Minister's Hour" a one-off effort. One of the e-mail messages that have been released on the exchanges between the broadcaster and the Prime Minister's office states: "It is our General Manager Jana Rangooli's desire for this show to become a regular event for every encumbent Prime Minister." It was to be represented as "an entertainment show with no connection to the election." Dream on ....

by Ross on February 22, 2012
Ross

But saying that a privately owned radio station that broadcast's one politician's speech and not another's breaches that other person's freedom of expression as a general principle: that's just silly.

I wasn't aware anyone was saying that but maybe I missed it. The point's been made that what RadioLive did was unfair and was of assistance to the PM. As far as freedom of expression is concerned, I don't see an issue here. The PM can go on RadioLive with his new-found friends. Just not during election time. Is that an unreasonable restriction? I wouldn't have thought so.

by Graeme Edgeler on February 22, 2012
Graeme Edgeler

The PM can go on RadioLive with his new-found friends. Just not during election time. Is that an unreasonable restriction? I wouldn't have thought so.

He can't do it at any time with the RadioLive breaking the law.*

*according to the interpretation adopted by the Electoral Commission.

by Andrew Geddis on February 23, 2012
Andrew Geddis

He can't do it at any time with the RadioLive breaking the law.*

*according to the interpretation adopted by the Electoral Commission.

I don't think that's necessarily right, Graeme. The Commission repeatedly refers (at paras 36-38) to the fact the broadcast occured in the run-up to an election and so voters would be particularly influenced by the presentation of the PM-as-PM in a favourable light. And remember that s.69's interpretation only refers to encouraging/appearing to encourage people to vote for/against a party or person.

So it may be that the Commission would still think this was an election programme even if there were no election looming, but it is no certainty they would do so and I'd say there are pretty strong BORA arguments for them not to. After all, the Broadcasting Act isn't there to prevent broadcasters presenting politicians in a good light at all - simply to stop them doing so in ways that might influence voting patterns. And it's a lot easier to make that argument where the vote is 2 months away, rather than (say) 18 months distant.

by Graeme Edgeler on February 23, 2012
Graeme Edgeler

After all, the Broadcasting Act isn't there to prevent broadcasters presenting politicians in a good light at all - simply to stop them doing so in ways that might influence voting patterns.

In paragraphs (a) and (b) of the definition, sure. Paragraphs (c) and (d) make no reference to an election or voting at all. You don't think portraying a politician in a good light might be seen as advocating support for a party or candidate?

by Andrew Geddis on February 23, 2012
Andrew Geddis

Well ... we don't know of course, because the Commission didn't look at para (c) or (d), so there's no telling if the decision it made in relation to this show would be the same if it was applying these. So I stand by my support for David's claim that the Commission's decision doesn't necessarily stop a "Prime Minister's Hour" in a non-election year. 

Further, paras (a) & (b) are worded "encourages or persuades or appears to encourage or persuade voters" to vote for/against a party or candidate. Para (c) is worded "advocates support for a candidate or for a political party". The absence of "appears to ..." in para (c) means the test isn't an objective "would a putative reasonable person think this programme has a particular effect in the circumstances?", but rather is "does this programme have an effect?" And absent John Key saying "I think you ought to support me" or likewise, I'm not sure that you could say the PM's Hour did "advocate support" for National/him personally.

by Tim Watkin on February 24, 2012
Tim Watkin

Andrew, I've blogged quite openly about the Peters decision a couple of times, so you could have at least linked to a Pundit post rather than Stuff! As I've said, we erred on inclusiveness and technically, as Guyon said at the time, Colmar Brunton had rounded up NZF to 3% – so it was consistent with the rules determined months in advance.

And while I hate to take the bait... because I've already banged on about this with Nicky, the fact is that the whole 'it's Winston and he's good telly' element did not come into the final decision. It was about the principle and the technical rules – yes, we're that earnest!

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