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.