The Chairman doth protest too much

Peter Radich, Chair of the Broadcasting Standards Authority, seems to have had a Hamlet moment at the Commerce Select Committee meeting yesterday, absolutely rejecting  “any kind of improper influence” over his controversial decision on the PM’s Hour. He apparently saw that accusation made on a blog.

All I have stated here is that he is a National government appointee, which is a fact. I wouldn’t accuse him of being improperly influenced, rather of lack of  competence. In deciding the PM’s Hour was not an election programme his judgement went way outside the Authority’s brief.

Section 80A of the Broadcasting Act makes it absolutely clear that the Electoral Commission is charged with any decision as to whether a broadcast breaches the Section 70 prohibition of election programmes other than those authorised by the Act.

The Broadcasting Authority’s role is to judge whether any legitimately broadcast programme breaches its code of election standards. These differ from other standards in that

There is one exception to this: the requirement to present a range of significant viewpoints on controversial issues of public importance does not apply to election programmes (see section 79 of the Broadcasting Act).

Section 79 makes it clear that the Authority’s role refers to programmes broadcast pursuant to the Act, that is legitimately. The BSA’s own code makes it clear that these programmes can only be broadcast within an election period as defined in the Act, which commences after writ day.

Peter Radich notes that no-one appealed his unusual decision to the High Court. It is hard to see why anyone would, given that the matter is properly decided by the Electoral Commission and they had not issued their decision prior to the expiry of the one-month limitation on such appeal.

Had Peter Radich said that any complaint directed to the Standards Authority failed because the programme in question was not one to which broadcasting standards applied he would have been absolutely correct. The issue at stake was not any breach of a standard, but a breach of the prohibition in the Act.

So in my opinion it is fair  to question why the Chairman felt so incumbent upon him to delve into matters so far beyond the legitimate brief of his Authority. He offers his opinion that the Broadcasting Act is outdated – but the Act is very clear about how it can be breached. The Electoral Commission, which does have the charge under the Act,  has now referred the matter to the police as it is required to do. We can at least be certain that the Electoral Commission is  independent of any influence, improper or otherwise.

As for any influence on Peter Radich, we know that he sought comment from the Prime Minister’s office prior to issuing his decision. The letter from Wayne Eagleson dated 5 October, PM response to RadioWorks complaint John Key’s Chief of Staff, addressed to him in response to his minute of 4 October, advises him that the Prime Minister’s office initiated the suggestion that Radio Live “sought and obtained advice from the Electoral Commission.”  Given this notice, one assumes that Radich obtained a copy of the Commission’s advice and if so it is astonishing that he proceeded to his own decision  issued on 14 October. It wasn’t secret – I obtained it under the Official Information Act.

Wayne Eagleson was certainly keen to assist Peter Radich. He writes: “If you have any questions of would like any further input from the Prime Minister’s office, please call me on 04 817 9365.”

There are two important issues at stake here. One is referred to at paragraphs 32 and 33 in the Electoral Commission’s decision on the complaint made by me and others.

The question is how the definition of election programme is to be applied to such a case. It is clear that the motivation of the broadcaster in broadcasting the programme or the politician in participating in it is irrelevant. The test in Section 69 is objective. What matter is whether objectively a listener would regard the programme as encouraging or persuading or appearing to encourage or persuade voters to vote for or against a party or candidate.

Given the novel circumstances in this case, it is appropriate to consider what we understand to be the policy behind the 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 through an exemption for news, comment and current affairs broadcasts relating to an election.

This policy means New Zealand does not see $millions as in Australia or $billions as in the US spent to influence political opinion.

The second issue relates to political influence on our media. TV7 is on the way out, Sky is on the way up, with Australian political coverage looking more and more like Fox News by the day. Here the police have been called in to prevent the publication of the tea party tapes. It is time the rest of our media woke up and took and interest. As the Electoral Commission says, media freedom is crucial.