Legal Beagle by Graeme Edgeler

Thanks for a very clear elucidation. I am appreciative of your attempts to explain this on Kiwibog as well, though I do wonder why you bother ;-)

Having now received a copy of the (still embargoed) decision, there seems one other point to usefully note about the difference between the Electoral Act and the Broadcasting Act:

while both set up a process whereby the Electoral Commission acts as an initial screener of complaints, the Electoral Act allows the Commission to decline to refer a matter to the police if it considers the breach was inconsequential and that there is no public interest in reporting it. The Broadcasting Act does not include this “out” and requires that all breaches the Commission finds under the Broadcasting Act are referred to the police.

Thanks for a very clear elucidation.

Me too. On the "out" clause,
Oh what a tangled web we weave...

NZ on ear...

An hour hosted by the PM, but otherwise involving exactly what they’d normally be doing...

effectively an "aural billboard" I'd have thought...

I was asked for a clarification on the different definitions of election programme, and why the BSA and EC came to different conclusions, it seems sensible to copy my reply over:

I didn't want to get into it in my post, but I think while the BSA came to the right result, they used the wrong reasoning. They'd used mine in the past, and I was surprised when they didn't use it again. I didn't make a big deal about it at the time because even if the BSA had concluded it was an election programme over which they had broadcasting standards jurisdiction, all that would have meant was that they have considered it against broadcasting standards, and I was pretty confident that there was nothing in the broadcast the breached the election programmes code, or any of the other broadcasting standards.

The dual definition of election programme is contained in section 3 of the Broadcasting Act:

"election programme,—

(a) in the definition of advertising programme and in sections 8 and 21, means a programme broadcast under Part 6; and

(b) in Part 6, has the meaning given to it by section 69"

sections 8 and 21 deal with the BSA, and Part 6 is about the EC.

The BSA decision is available here. You will note they adopt the definition in section 69, without mentioning that their jurisdiction arises out of section 21, and that they should therefore be assessing whether the programme was "broadcast under Part 6". They'd have reached the same result much more cleanly had they gone down that route.

This wasn't advertising content, over which a broadcaster exercises limited control (they have a veto, but don't really edit it)

I thought a lot of radio advertising was produced inhouse by the broadcaster that transmits it?

Not clear to me what time limit is. Am i being dim?

Not clear to me what time limit is. Am i being dim?

No. In my somewhat hurry, I didn't say. Any prosecution must be laid within six months of the broadcast.

"The BSA decision is available here. You will note they adopt the definition in section 69, without mentioning that their jurisdiction arises out of section 21, and that they should therefore be assessing whether the programme was "broadcast under Part 6"."

Maybe so. But they didn't do that. And so the BSA quite clearly decided, on their interpretation of s.69, that this just wasn't an "Election Programme" as per the Broadcasting Act. Which is the complete opposite view to the Electoral Commission. So, with respect, you can't say that the BSA and EC somehow came to different views because of the different question they were asking. They asked the same thing - "is this an Electoral Programme?" - and then simply applied different understandings of what the s.69 definition is aimed at.

Point being, the fact two different bodies asking the same question came to different answers indicates that there's no real clear right or wrong answer here.

Point being, the fact two different bodies asking the same question came to different answers indicates that there's no real clear right or wrong answer here.

And if S. 69 of the Broadcasting Act is ambiguous it's hardly the fault of either the BSA or the Electoral Commission, since they don't draft, amend or pass legislation - that's all on Parliament. :)

Maybe so. But they didn’t do that. And so the BSA quite clearly decided, on their interpretation of s.69, that this just wasn’t an “Election Programme” as per the Broadcasting Act. Which is the complete opposite view to the Electoral Commission. So, with respect, you can’t say that the BSA and EC somehow came to different views because of the different question they were asking. They asked the same thing – “is this an Electoral Programme?” – and then simply applied different understandings of what the s.69 definition is aimed at.

I concur. The BSA and EC both asked "what does s 69 mean?" and came to different, incompatible views.

I think the BSA asked the wrong question, but I felt a long discussion about the reasoning of the BSA (which I consider flawed) wouldn't aid the point I was making through the post, which is about the EC decision, so rather than fully explain it, I noted that the BSA reached the right "result" and then pointed out why I thought that result was the correct one. I wanted to get the post out quickly, and even this shortish post from me was closing in on 1500 words, so left out my full thoughts on the BSA's decision.

In response to the query, I then more fully explained why I considered the BSA had the correct result, but had flawed reasoning.

Point being, the fact two different bodies asking the same question came to different answers indicates that there’s no real clear right or wrong answer here.

No dispute from me. But as one of those bodies shouldn't even have been asking the question, I'm happy to to rely on the other one until we hear from a Court.

I have now updated the post with a link to the Electoral Commission's decision. If you look at the final section, you may see why I consider a full prosecution unlikely. To me, it reads like the Electoral Commission is telling the police that they considered this minor enough that they wouldn't have referred it had they had a choice about it. Feel free to argue the alternative, however :-)