Last night's Media Take looked at the background to the Electoral Commission's advice on Darren Watson's 'Planet Key' song and video: firstly, that it is an "election programme" (probably correct under Part 6 of the Broadcasting Act, whatever you think of it), then that it is an "election advertisement" (probably not correct and really needs testing in court).
Watson's problems with the song have been fairly widely reported, along with his announcement that he's taking it to the High Court, but there's a story behind this encompasses the Commission's decision last year that this Jono and Ben sketch -- in which the punchline is a spoof election ad featuring Winston Peters -- was in fact a real "election programme" under the Broadcasting Act.
The Commission referred the sketch to the police (the only action it can take over alleged infringements) on the basis that it was an election programme shown outside the election campaign period. Unsurprisingly, the police have not exactly been rushing on that one.
Behind the scenes, the Broadcasting Standards Authority disagreed strongly with the Commission's decision, which it believed didn't pay proper heed to the Bill of Rights Act's guarantee of freedom of expression. The Commission rejected the BSA's view that seeking a declaratuve judgement from the courts would be helpful.
What we're seeing now is more of the same from the Commission.
Update: I've uploaded two legal opinions sought by the BSA in the course of this important, but little-known struggle between the entitities. As I noted on the show last night, both consider the Jono and Ben case and reach conclusions that might be summarised as "it was a joke, for goodness sake".
We didn't have the space on the show to go into much more than that, but the first of the opinions, provided in April by Russell McVeagh, is summarised thus:
(a) we advise that a principal reason for the difference of approach between the BSA and the Commission is that the BSA interprets "election programme" by reference to section 14 of NZBORA (freedom of expression), whereas the Commission sees limited, if any, role for that provision;
(b) the two approaches can, and do, lead to different results in individual cases, as illustrated by two recent complaints; and
(c) we advise that the BSA should not adopt the approach of the Commission, precisely because that approach gives inadequate effect to section 14 of NZBORA.
The second, provided in May by John Burrows QC, also traverses the BORA and concludes that:
... consistency with BORA’s right of freedom of expression requires that the words “encourage” and “persuade” in section 69 should bear their natural meaning of active incitement to vote for a party or candidate, and that this interpretation applies both within and outside the election period. That is the position arrived at by the BSA.
Burrows further concludes that "Part 6 of the Broadcasting Act would benefit from review".
I also sought a couple of quotes myself. Auckland University's John Ip, the editor of the New Zealand Law Review, told me that:
It probably makes sense to have a specialist body deal with such matters at first instance. That said, given that the Electoral Commission is interpreting and applying law when it makes its decisions, it is important that the Electoral Commission's understanding of the relevant law is correct.
So it would be useful to have guidance from the Courts as to whether, in light of the NZ Bill of Rights Act's guarantee of freedom of expression (which speaks of "the freedom to seek, receive, and impart information and opinions of any kind in any form") and its general instruction to interpret legislation consistently with it where possible, something like 'Planet Key' - in essence, musical political satire - falls within the Broadcasting Act's definition of "election programme" and the Electoral Act's definition of "election advertisement". Even if a court decision were to affirm the Electoral Commission's view, this might provide some impetus for reconsideration of the law.
And Professor Andrew Geddis of Otago University, who has already written about the 'Planet Key' issue, said:
Because the Commission is both in charge of voting and reporting offences to the Police, it must avoid any allegations that it is acting in a partisan or non-nuetral fashion. This fact leads it to take a very conservative - and perhaps overly conservative - view of what the law says. But the real problem is that it is dealing with a piece of law that is some 20 years old and was written for a completely different media landscape.
As a lay person, it does seem to me that there are probems with both the law and with the Electoral Commission's interpretation of the Broadcasting Act and the Electoral Act. And that Darren Watson is doing everyone a favour by going to the High Court for a judgement that the Commission shows no interest in seeking of its own accord.
Last night's Media Take can be viewed here.
In the studio to discuss 'Planet Key' and all, we had Andrew Maitai, owner of Powertool Records, whose Election EP I noted in last Friday's music post, and Hamish Keith, who has been scornful of the Electoral Commission's warning to a Napier art gallery over an exhibition of the late Whetu Tirikatane-Sullivan's frocks.
The show led with Toi Iti interviewing the founder of RockEnrol, the very impressive Laura O'Connell Rapira, and finished with Jane Kelsey talking about the TPP, which has pretty much fallen off the media radar.
But for now, here's Loop Recordings' new all-star get-out-and-vote version of Bob Marley's classic 'Get Up Stand Up'.
It's non-partisan, but the label's owner Mikey Tucker and one of the artists, King Kapisi, are involved with the Internet Party. The party has nothing to do with with the tune, but you can probably expect the usual suspects to try and make an issue of it. The song is available as a free download here.
Finally, as I've noted recently here, I believe that our tolerance for more robust forms of political expression should be broad. But mine, anyway, doesn't extend to this. The sentiment in the title of 'Kill the PM' crosses a line and the stuff about Key's daughter more particularly crosses several more. I think the song has been played live by @Peace and Home Brew before, but posting it now is really Not Helping. Fucksake.
Media Take screens at 10.30 tonight, after the Tuesday documentary, on Maori Television.