PM’s Radio Live show referred to Police
February 9th, 2012 at 7:58 am by David FarrarStuff reports:
A RadioLive show hosted by the Prime Minister John Key prior to the election has been referred to the police for breaching the Broadcasting Act.
The Electoral Commission confirmed this morning that it had referred the broadcaster to police. …
NewstalkZB said it had obtained a copy of the report, which found the show violated the act. RadioLive could be fined up to $100,000 for the breach.
The BSA had earlier found the show was not an election programme and would not have breached standards even if it were.
It looks like Radio Live, rather than the PM, may be in the gun in a legal sense. But if the show is found in court to be a breach of the law, it will be politically embarrassing to the PM, no doubt.
I think it is safe to conclude there will not be a repeat show – or at least not during the regulated period anyway.
It will be interesting to see what the Police do. A show with Shane Jones in it was referred to them for investigation in 2008. I can’t recall what the outcome was in that case.
Related posts:
- Radio Live on Internet Governance
- Labour referred to Police – again
- Shane Jones referred to Police for EFA breach
- Labour on the PM’s radio show
February 9th, 2012 at 8:09 am
If I heard correctly (I was in the car) then MediaWorks actually asked the ‘broadcasting authorities’ whether it was OK to proceed, in the days before the PM’s ‘hosted hour’ went to air. If MediaWorks was given a green light to proceed, then surely these same ‘authorities’ should also be called to account.
Opinion seems to be that the Police will not proceed – given that the BSA dismissed the earlier complaint by Labour.
But stranger things have happened….
Vote:February 9th, 2012 at 8:12 am
Is it possible to separate the Private Citizen from the Politician? It seems odd that in this country, a private citizen can ring talkback at any time and espouse all sorts of political opinion, and that not breach the law, but a high level politician can be on the radio, and not talk politics, and that media outlet find itself in the gun. The only think that can be gleaned from this is that the electoral commission is of the opinion that a politician is always seeking a vote, both actively and passively.
Vote:February 9th, 2012 at 8:13 am
The police are yet to lift a single finger for any of the complaints referred to them by the Electoral Commission. If they police can’t or won’t prosecute then what is the point of these laws.
Time for an Independent Commission Against Corruption to handle what the Police find too squeamish.
Vote:February 9th, 2012 at 8:15 am
I thought it was totally unnecessary for Key to stir this up in the first place, he must have known that controversy would be about the only outcome (he didn’t need the publicity) – but the speed at which this case is proceeding is ridiculous.
The horse has well and truly bolted and may be in the knackers yard before this reaches a conclusion. About the only conclusion I can see coming of it is that the electoral laws are a farce.
Vote:February 9th, 2012 at 8:27 am
Just retrospectively change the law to make it ok. Easy.
Vote:February 9th, 2012 at 8:39 am
They weren’t “green-lit”.
Mike Smith asked the Commission to release its advice, and it did. He posted it on the Standard, and it’s still there.
http://thestandard.org.nz/wp-content/uploads/2011/10/Letter-to-M-Smith-5_10_111.pdf
He fairly summarises the advice in a post here: http://thestandard.org.nz/what-the-commission-said-key-on-radiolive/
Vote:February 9th, 2012 at 8:41 am
All in all Key did not run a great campaign and was fortunate that Goff and Labour were tactically inept. However he will be reminded every parliamentary session that he needs to do better by the presence of Winston. Without Key’s efforts Peters did not have a hope in hell of getting to 5%.
Key will be a lot smarter next time I expect.
Vote:February 9th, 2012 at 8:52 am
Mark – “Without Key’s efforts Peters did not have a hope in hell of getting to 5%.”
In my opinion, Key can’t be held resposible for peoples stupidity in voting for Winston Peters.
Vote:February 9th, 2012 at 9:03 am
@Graeme Edgeler: For the sake of accuracy, may I refer back to my earlier comment:
As I said, the suggestion was that MediaWorks asked the “broadcasting authorities” (no mention of the Electoral Commission) in advance of the show going to air.
For all I know, they may have asked someone in ‘broadcasting’ rather than someone at the EC.
Vote:February 9th, 2012 at 9:11 am
Well, we know they sought advice from the EC, so it’s not unreasonable to assume that’s what they meant. Not least because it’s the EC which actually gets to make decisions about this.
They may have asked for advice from the BSA as well, who would almost certainly have been similarly non-committal, and even if they weren’t (unlikely) they’d only have given advice about broadcasting standards, and even if they cleared it (which they don’t do in advance), that advice would have been fine, because there was no broadcasting standards breach.
The only other broadcasting authorities we have are the people responsible for issuing broadcasting licences, and if they sought advice from them, then everyone involved is a moron.
Vote:February 9th, 2012 at 9:13 am
Another example of our expensive, time-wasting efforts to shut down free speech and close off media etc to any electioneering. Why do Kiwis always have to be treated as infants?
Vote:The best remedy is to make it open slather and let us, the voters, make up our own minds.
It’s a bit rich of Labour to be squealing, considering their egregious breaches that they mostly got away with.
February 9th, 2012 at 9:15 am
Regardless of the outcome (if any) of this process it’s hard not to see Key’s decision to participate in the program as a slap in the face of the spirit of fair campaigning. The PM (and their party) has a major media exposure advantage leading up to an election campaign as it is.
One of Key’s strengths is his ability to come across as an ordinary Kiwi bloke and he probably saw the talkback as a way of connecting with ordinary people, but he neglected to consider the Kiwi ideal of giving everyone a fair go.
Vote:February 9th, 2012 at 9:18 am
What a load of Bollocks !!!
Vote:February 9th, 2012 at 9:21 am
Pretty thinly disguised. Radio Live promoted the hour because John Key is the PM, not some other personality of interest. The commission was very clear on the rules and it seems there was no sincere effort to keep within the rules, in fact it was treated a bit like a joke by inviting Paul Henry to moderate. But most stupid of all, not excluding Key buying into the ridiculous situation was that Radio Live have the ability to cut anything before going to air, that none of the parties including Key, used that facility belies their intention. As the references posted by Graeme Edgeler say the programme was ‘brand’ Key. And now the public are invited to see how seriously John Key views electoral law and wonder about his judgement.
A final note. The inquiry to the Electoral Commission is a bit diverting. The onus was on Key to make sure he abided by the Electoral Laws and quoting or seeking advice from the Electoral Commission seems intended to subvert that. Not withstanding that the Commission was clear that they couldn’t offer advice or judgment on something which had not yet happened, seemed very sharp advice as to the dangers.
Vote:February 9th, 2012 at 9:31 am
So there are two opposing opinions whether it breaches the law. It seems all the police can do is get a Crown Law opinion whether the police can probably get a conviction by proving beyond reasonable doubt that it breached the law.
Vote:February 9th, 2012 at 9:33 am
The PM was on the radio. Who cares? Why do we have a law that addresses an issue that no one cares about and which the penalty is being referred to the police so they can do nothing about it? And I’m sick of hearing that some party produced hats, balloons, or posters and forgot the tiny-text authoriser statement and are therefore being referred to the police so they can ignore the matter. Partly because I also don’t care about a tiny authoriser statement, and also because I’m paying for the Electoral Commission and Police to waste their time over these matters.
I prefer dropping all these laws that try to regulate free speech. Let politicians get their message across how they like when they like, and let them spend their own money to do so.
Vote:February 9th, 2012 at 9:46 am
It’s amazing that an hour of the PM talking about anything but politics is an election programme, yet the daily programme on behalf of the Mana Party (aka the Willie Jackson show) isn’t.
Vote:February 9th, 2012 at 10:02 am
Pete George – re your comment that he didnt need the publicity.
You are wrong. Ive seen an analysis somewhere recently that showed if 5000 voters had changed their vote, then it wouldnt be a national coalition. I think it was 5000 voters in Epsom, but i stand to be corrected.
They are not in power by as much as people think.
Vote:February 9th, 2012 at 10:04 am
Whale has a GOOD point. It is all or none.
Graeme E ..a much admired E Law purist. But, GE, life must go on .
And there things that really matter in 2012 – not esoteric law breeches[sic] which, may or may not be established before the Courts (The ELCom relies on seconded Justice Department lawyers, does it not?) once a bunch of QCs challenge the prosecution’s case .
Moreover, if Parliament can retrospectively ratify the theft by Labour of some $900,000, why are we now worrying about a radio show?
Vote:February 9th, 2012 at 10:05 am
“It’s amazing that an hour of the PM talking about anything but politics is an election programme, yet the daily programme on behalf of the Mana Party (aka the Willie Jackson show) isn’t.”
Exactly.
Vote:February 9th, 2012 at 10:06 am
No, there aren’t.
The BSA decided they didn’t have jurisdiction. They didn’t. The definition they used differs from the one the EC uses because of the way the Broadcasting Act is written. The BSA also deals only with broadcasting standards, which this didn’t breach (it’s not like John Key was swearing at school children and falsely accusing his opponents of having policies to kick pensioners out of their homes).
The EC looked at their bit of the Act and came to their conclusion. It was probably a close call, but ask yourself: why would the PM – given all the other things he has to do – drop everything less than two months before the election – to spend an hour assiduously designed to have no effect on the election at all? Maybe because it actually was intended to affect the election?
Vote:February 9th, 2012 at 10:10 am
Generally not. They have some internal lawyers, and seek advice from Crown Law.
Parliament’s validation explicitly excluded any criminal liability. Anyone who committed an offence could still have been charged.
Vote:February 9th, 2012 at 10:16 am
@Graeme Edgeler: Far too many assumptions for my liking.
Suggest that, before any further guesswork is involved, we wait until the facts emerge.
But if you are privy to the facts, then please help us join the dots…
Vote:February 9th, 2012 at 10:21 am
GE….
Vote:Re Labour’s “invalidating” legislation….
Dancing on the head of a pin, is it not?
February 9th, 2012 at 11:02 am
Only one piece of knowledge is needed Elaycee: government organisations responsible for determining complaints about things (like the BSA and EC) never give advice clearing items in advance that they haven’t even seen (or heard), and without knowledge of what will be said.
Vote:February 9th, 2012 at 11:24 am
Leighton Smith routinely promotes the Libertarian Party on his show as well as ACT policies and did so doing the election cycle.
Vote:February 9th, 2012 at 11:53 am
Graeme Edgeler
Vote:Do you enjoy dancing on the head of that pin?
February 9th, 2012 at 12:25 pm
For those that think the law should be changed, or who provide examples such as Willie Jackson or Leighton Smith – none of that matters. The single concern is that show put to air last September. On a day when there is a thread going about speed tolerances we are getting ‘excuses’ such as ‘I was only speeding to overtake,’ what about the red commodore, or that truck?’
Vote:You still get the ticket. The only difference being that the ECA, in theory, has a ‘zero’ tolerance.
February 9th, 2012 at 1:43 pm
On something like that? Sure.
I opposed the validating legislation. But to say that it validated criminal actions is false. Had it done that it would have been much worse than it already was.
Vote:February 9th, 2012 at 2:02 pm
According to TV3:
But the detail highlights the usual TV news trick, to quote ‘up to’ the maximum, which may bear no resemblance to the likely level of fine.
I wonder how much advertising the show sold.
Vote:February 9th, 2012 at 2:09 pm
@Graeme Edgeler
If this was an election advertisement, wouldn’t it then be treated as a donation in kind and likely put National in breach of its broadcasting allocation cap? A one hour radio ad wouldn’t come cheap.
Vote:February 9th, 2012 at 2:24 pm
Pete,
The media do like to sensationlise. If convicted, Radio Live will probably get a slap on the wrist or a small fine. Presumably the PM would pay any fine if it was the beyond the broadcaster’s means.
Vote:February 9th, 2012 at 3:17 pm
If this was an election advertisement, wouldn’t it then be treated as a donation in kind and likely put National in breach of its broadcasting allocation cap? A one hour radio ad wouldn’t come cheap.
1. It wasn’t an election advertisement. That’s a term in the Electoral Act which the Commission decided this wasn’t. And if it wasn’t an election advertisement then its not an election expense.
2. It doesn’t matter if this was an election advertisement or not in determining whether it is a disclosable donation. A donation of $100,000 worth of polling isn’t a donation of an election advertisement or that goes toward an election expense, but is still a donation.
There may be issues in assessing whether this is a donation received by the National Party (how can you receive a donation you don’t really know about? maybe it was received by John Key?), but there’s certainly enough there for the Electoral Commission to be looking at. I don’t know the answer, but the question is certainly open.
Vote:February 9th, 2012 at 6:16 pm
If an offence has been committed, it must have crossed an extremely fine line.
The relevant section uses the term is “encourages or persuades” or “appears to encourage or persuade”. Graeme’s argument (and seemingly that of the Electoral Commission) is that the very fact of the appearance is likely to have that effect – i.e. there can be no other reason for him be in there other than to lift his profile. Radio Live argued that the purpose of him being there was to lift the profile of the radio station.
Assuming that the program was devid of political commentary, it did offer the opportunity for the Prime Minister to come across as congenial, perhaps funny, perhaps interesting, perhaps entertaining et cetera.
Looking at it objectively, can really be said that a picture of his personality persuades people to vote one way or another?
A lot of people see John Key’s performances on television as superficial and reasons not to vote for him. As many, probably more, may view has personality more favourably. At the end of the day, however, is it appropriate for the Court to determine that there is a criminal offence based on the presupposition that people will vote for a political party based solely on their perception of a candidate as a person?
We are skating on quite thin ice here. I can recall countless political commentaries by the likes of Duncan Garner and Patrick Gower where the presentation was laced with satirical humour (or attempted satirical humour) the sole purpose of which was to present a political party or a politician in bad light. Do they cross the line?
Vote:I am inclined to the view that the court might take a slightly less pedantic view of the section than the Electoral Commission and conclude that encouraging more persuading, as used in the section, requires something a little more assertive than occurred in this particular case.
February 9th, 2012 at 6:42 pm
If that correct Nookin, what a Court might decide – if it gets that far, that a definitive line is in order, because at the very least JK has danced in the grey as apparently have Peters and Jones before him. Equally, it could be seen as a poor judgement issue.
Vote:Difficult to accept that Key had no motivation in being there. If Radio Live argued he was there to live the profile of the station, then what was Key’s purpose, naive compliance?