Electoral Commission, Radio Live, Key and the BSA

Written By: - Date published: 5:40 pm, February 9th, 2012 - 12 comments
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Radio Live and the Prime Minister pushed the boat out in the PM’s hour programme, broadcast on September 30 last year. Radio Live asked the Commission for advice two days before the programme was run, although they had been planning it for months. When Key’s office received the Commission’s warning to be careful about the progamme, an internal memo said  “the electoral Commission have been pretty clear about putting the responsibility on the broadcaster, which is useful”.

Radio Live and Key’s office knew they were sailing very close to the wind. The Electoral Commission has now sunk Radio Live’s argument, finding that it breached Section 70 of the Broadcasting Act, which forbids broadcasting of election programmes other than those paid for by the Commission. The Electoral Commission goes into the reasons for this restriction at some length:

It is appropriate to consider what we understand to be the policy behind the election broadcasting regime. The legislation imposes strict restriction on the broadcast of election programmes because of the supposed power and influence of broadcasting compared to other  media. The objective is first, to provide candidates and parties with a fair opportunity to present themselves to the electorate and secondly, to avoid candidates, parties and third parties, particularly those with deep pockets, obtaining unfair levels of access through the broadcast media. Importantly, media freedom is protected though an exemption for news, comment and current affairs broadcasts relating to an election…

In all the circumstances it is reasonable to conclude listeners would regards the show as appearing to encourage or persuade voters to vote for Mr Key’s party and for him. In the Commission’s view, this conclusion would be consistent with the policy of the statutory scheme to limit parties and candidates exposure through the broadcast media in the lead up to the election to paid political broadcasts or to news, comment and current affairs programmes.

I agree wholeheartedly with this view. As we look around the world at Fox News, the now defunct News of the World, Gina Rinehart’s purchase of of a chunk of Fairfax we see those with very deep pockets taking a great deal of interest in what is conveyed through the broadcast media. Our legislation protects New Zealanders  from that, and does not inhibit the media or free speech.

As for breach of the Electoral Act, Key and the National party were thrown a lifebelt by the difference in wording between sections of the Act which provides an exemption for editorial control in one case and does not mention reasonableness in the other. This is a long-standing problem and should have been cleaned up in the review undertaken by Simon Power. The Commission suggest this is a matter Parliament may like to look at and I would hope that it will be done as part of the Select Committee review of the election.

The Broadcasting Standards Authority was also asked to rule whether the programme breached any of the standards that come under its jurisdiction. Rather surprisingly, in order to get to this point the Authority Chairman, a National government appointee, chose to offer his semi-judicial view of what constitutes an election programme. He could not have as he just did not have  jurisdiction. However he put his view that to be an election programme there had to be had to be an explicit seeking of a vote. The Electoral Commission, which does have jurisdiction under the Broadcasting Act, has now given the settled view – encouragement to vote does not require an explicit request to vote.

My complaint last year was based on the fact that John Key and the National Party were running a brand campaign for the 2011 election. In her response to an initial request for a matching offer from Fran Mold, Jana Rangooni of Radio Live said that the programme was not an election programme but was designed to encourage listeners to “our brand” – to argue that it was designed to encourage listeners to Radio Live’s brand but not voters to John Key’s brand beggars belief.

Finally, this breach is not a trivial matter. The public relations value if assessed in any other campaign would  be considerable. No one else received that free benefit. The penalty for breach of this section of the Act by a broadcaster is a fine of up to $100,000. It is assessed after summary conviction so a charge may be laid with the Police by anyone.

12 comments on “Electoral Commission, Radio Live, Key and the BSA”

  1. Jack 1

    Yes!! Key is caught out again.. only time before people start to see past the friendly news media and look at Key for what he is…. a shallow profiteering wall street boy.

  2. tc 2

    Who pays the fine? Mediawonks? Still cheaper than interest on that taxpayer subsidy the NACT gifted them…..any details on a payback schedule for the ‘loan’.

  3. james 111 3

    Well I guess they wanted some one inspirational, and aspirational some one with a bit of life connectivity to the public.At the end of the day they wanted to build the brand up not destroy it that is why they would not have invited Phil Goff on the show

    • Colonial Viper 3.1

      Goff not on because Goff doesn’t take the piss out of election law like John Key.

      John Key = Attack on Democracy.

    • fender 3.2

      You could get a job in (bullshit) advertising with the first part of that dribble james.
      As for Goff, he’s genuine, sincere and a hardworking nice bloke, maybe too nice to be PM.

    • prism 3.3

      Gosh james – did the conservatives give you some tapes to play while you’re asleep so that their message would go straight to your unconcious mind and bypass the critical bit in the brain? Hope you can find a way to regain that fundction and it turns out all right for you.

  4. Lanthanide 4

    “to argue that it was designed to encourage listeners to Radio Live’s brand but not voters to John Key’s brand beggars belief.”

    No, I don’t think so. Basically they’re saying “listen to Radio Live because we have everyone’s favourite Prime Minister on for an hour to talk to his favourite people”.

  5. Carol 5

    And now TVNZ gets a complaint against them:


    The commission has announced that it has also made a police complaint over One News coverage on the night of the November election.

    The commission said TVNZ’s coverage before 7pm could have influenced voters.

    “It is the Electoral Commission’s view that the broadcast breached section 197(1)(g)(i) of the Electoral Act 1993 because it included statements that were likely to influence any elector as to the party for whom the elector should or should not vote,” it said.

    Did anyone see this coverage? What was included?

  6. prism 6

    Why wasn’t this type of last minute image building not spelt out as being a no-no in the controlling law? It could be that we humans are like animals whose minds get imprinted with the face and characteristics of some ‘significant other’. Just as well I can’t fly or I might find myself following Key’s plane to Hawaii like the geese in Canada after the microlight!

    Who draws these laws up. There used to be a small band of law writers but I understand it is outsourced now. What about some contingency clause with a refund from some smug law firm for patchy laws like this.

    • Mostly it’s still the Parliamentary Counsel’s Office (although the IRD does Tax). They get some specialist help occasionally, but this is – if anything – a policy failure, not a drafting one.
      Also, this is quite an old law – out of date, even – so even if there had been a change (which I don’t think there has) this wouldn’t have been effected by it.

  7. It stinks of Crosby-Textor ,so the National Party should have this Radio stint added to their election expenses. And while we are on the subject where did they get all the money that paid for the hundreds of Billboards that were put up all round the country ?. There are certainly a lot of interesting questions needing to be answered,

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