The Electoral Commission has referred the Radio Live broadcast of "The Prime Minister's Hour" to the Police. The decision will be public from 5pm or so, but the fact it's been made is already out there, and I've already commented on it in several places, so a shortish (for me) piece to bring together my thoughts seems sensible.
Point 1: John Key has not been referred to the police.
The Electoral Commission leaves questions of liability up to the police. It has decided that in its opinion, the broadcast was in breach. It's up to police to decide who, if anyone, to charge, and to a court to decide who, if anyone, is guilty. A court may disagree with the Commission's interpretation.
Point 2: The Police had better hurry up about it.
One of the good changes made in the Electoral Finance Act (and carried through to our current electoral laws) was that the time limit for charging people with most electoral law offences was extended to a maximum of three years. I did ask them to apply this to the Broadcasting Act offences as well, but Parliament didn't. The broadcast was at the end of last September, so police may have to be a bit quicker with this than with their other complaints, or they'll be too late. Nearly two months should be easy enough to conduct the investigation however: the broadcast and a couple of interviews should provide enough information for a decision about prosecuting to be made. And because this is a fine only offence, police can't use teapot-tape style search warrants to find information.
Point 3: Who is in the gun?
Mostly, the broadcaster. The offence of airing an unlawful election programme is generally committed by the broadcaster, including all the likely breaches in this case. There are offences that are committed by both the broadcaster and the party, but these probably won't apply.
Point 4: Could John Key, or someone in the National Party team face charges for aiding and abetting?
This may be a possibility, but it seems unlikely. Given that there are other offences in the Broadcasting Act that penalise both the broadcaster and the advertiser, not having them apply in a situation like this suggests that the intention of the law is that only the broadcaster gets in trouble. There is also a legal principle that where an offence can only be committed with a party, then that is a clear indication that party liability isn't intended (the common example is prostitution: if a law makes selling sex illegal, but doesn't expressly make buying sex illegal, then you can't charge someone who pays for sex for aiding and abetting the selling of sex. You also can't charge someone who buys a joint as a party to the sale of drugs, which is a much more serious offense than simple possession). This isn't quite as clear cut as those prototypes, but on balance, and while I'm open to persuasion, I'd say it probably met the standard, and that sort of party liability probably wouldn't apply here.
Point 5. But that's not all there is...
While John Key and National's campaign team may not be in trouble over the broadcast itself, that's not necessarily the end of it. While the Electoral Commission has said the broadcast wasn't an election advertisement for the purposes of the Electoral Act (which means it won't count as an election expense), one thing it doesn't necessarily mean is that it wasn't a donation. I don't *know* the answer, but there's enough there for that to be the next question asked: how much was this worth (in a financial sense), and does that make it a donation that should already have been disclosed (donations over $30,000 must be disclosed within 10 working days)? There are some problems with this approach (if the Party Secretary never received this "donation", how could we expect them to know to declare it?), but there's enough there to investigate.
Point 6: Why did the BSA get it wrong?
I don't think they did. The Broadcasting Standards Authority deals with broadcasting standards, which I'm pretty confident this didn't breach (John Key didn't lie about his opponents, or swear profusely, for example). The BSA did say that this wasn't an election programme, but I think they've reach the right result on that too, despite the Electoral Commission taking a different view.
The simple point is that while the BSA and the Commission are both dealing with the Broadcasting Act, it has dual definitions of "election programme", one applying to the BSA and a different one applying to the Electoral Commission. While the Electoral Commission deals with all election programmes as defined in s 69 of the Act, the BSA only has broadcasting standards jurisdiction, and only in respect of programmes "broadcast under part 6" of the Broadcasting Act. Far from being broadcast under part 6, it seems that this was broadcast in contravention of part 6 of the Broadcasting Act (including, for example, because it aired before writ day). The BSA's jurisdiction under the election programmes code really only begins when they're capable of being lawfully broadcast, which (if this was an election programme under s 69) this wasn't.
Point 7: A $100,000 fine for Radio Live?
No. As I noted in my post on this at the time, Radio Live were really careful. While they didn't get sign-off from the Electoral Commission, they did seek advice, and it very much appears that they tried to keep within it. John Key was told to avoid politics and the election, and he seems to have, to the bemusement of a lot of people, with discussions on cats and Coronation Street instead.
Maximum fines are only ever levied at the most serious examples of offending, and usually for people who are repeat offenders. And Radio Live can point to a couple of examples from the previous election where Newstalk ZB handed over hosting duties to various MPs shortly before the election. The Electoral Commission said two were in breach, but that two others didn't go over the line, and Radio Live perhaps not unreasonably thought that there strict instructions to the PM to avoid politics might be enough to ensure they didn't break the law. This doesn't strike me as a calculated breach (in the way, perhaps, that TV3's airing of ads during Sunday morning RWC matches was).
Even if the Police decide to charge Radio Live, or someone else involved, the penalty is likely to be much lower than anywhere close to the maximum. TVNZ were charged over a (slightly less serious) Broadcasting Act breach a couple of elections back, and, from memory, received a fine of somewhere around $4000 (if anyone knows the exact amount, please let me know). And TV3's Broadcasting Act breach relating to airing ads on Sunday mornings during the Rugby World Cup didn't get them close to maximum either.
And given Radio Live's attempts to stay within the law, even if the Police agree with the Electoral Commission, they may consider a warning sufficient (however much I - and probably the Electoral Commission - might like a more definitive view).
Point 8: Why isn't this an election advertisement under the Electoral Act?
The definitions of 'election programme' in the Broadcasting Act, and 'election advertisement' under the Electoral Act include different things (although not vastly different), but also have different exceptions. It's probably the exceptions that matter here.
The Broadcasting Act says that news, comments or current affairs programmes relating to an election are not election programmes. The Electoral Act says that the editorial content of radio programmes (and other things) is not an election advertisement. This wasn't news or comment or current affairs, so it wouldn't fall within the Broadcasting Act exceptions, but it probably does fall within the much broader "editorial content" exception. This wasn't advertising content, over which a broadcaster exercises limited control (they have a veto, but don't really edit it), it was an hour of talk back. An hour hosted by the PM, but otherwise involving exactly what they'd normally be doing, they could drop callers, or bleep swearing, and probably had an earpiece where they could tell the host what to do next (or not do at all). We'll know the Commission's reasoning on this when it's public, but this seems likely.
As a side note, given comments on other blogs, a programme like TV3's child poverty doco clearly falls within the exceptions in both acts, so wouldn't fall foul of either.
Update: the Electoral Commission's decision has been uploaded to its website.