Legal Beagle by Graeme Edgeler

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.

Once I'm on holiday, I hope to post a fuller explanation of the reasoning underpinning my assessment of Paula's Peril - why I think, if an election petition went against her, that she'd be out of Parliament, but in the interim - and I know it might not sound like fun - but please go and read Judge Adams's recount judgment.

No jokes. It's 14 pages of democracy.

An (unlikely) scenario:

Paula Bennett requests a judicial recount of the votes in the Waitakere electorate. And after the judge (or the officer appointed by the judge)  conducts the recount, the numbers have changed, and Ms Bennett has won by a few votes. The Electoral Commission publishes the final result, declares Paul Bennett the MP for Waitakere, and Raymond Huo a Labour List MP.

Carmel Sepuloni, unsatisfied with the conduct of the recount in the District Court, or concerned that people's votes were improperly counted (or were impermissibly not counted), launches an election petition. Some time in the new year, the High Court hearing the election petition, able to enquire into the qualification of electors in a way a simple recount cannot, for a variety of reasons, finds that Ms Sepuloni has won: not because of a corrupt practice or anything like that, but because on a close analysis, she just had more valid votes.

What happens?

Well, the Court certifies that Carmel Sepuloni won. Carmel Sepuloni is sworn in as a member of Parliament, and Paula Bennett ceases to be the member for Waitakere. And ceases to be an MP.

Not Raymond Huo, though, he sticks around. Same with Cam Calder, Paula Bennett wouldn't take the list spot he fills. National's parliamentary strength has fallen by one from the official result, and Labour's is up, meaning there is no longer a parliamentary majority for the partial sale of state-owned assets, and National can't pass legislation with only the support of Peter Dunne and John Banks.

Why is this? Well, a policy decision was taken that finality was more important than proportionality, and the possibility that an election petition (or by-election) could change multiple seats (e.g. by removing a party from Parliament because it no longer passed the one seat threshold) months after an election was thought to be the greater evil. Of course, if it's certainty you want, this doesn't really provide it, as Paula's Peril shows. But the hilarity.

There probably isn't a good answer to this conundrum. But whether the balance has been struck correctly is something I think I'll be asking the MMP review to address. I can accept that proportionality may be lost through a by-election, but an election petition related to a general election is a different beast, and the distinction may be enough that different rules should apply. And if that means that - on very rare occasions - we have to wait a month or more before we're absolutely certain of the result, that may be a price worth paying.

The special votes are in, and my rudimentary analysis was pretty good. I was right overall (National down one, Greens up one) and on the small scale as well: getting the Green, New Zealand First, Maori Party, and United Future votes correct to two decimal places; and also correctly predicting that Mana would pass ACT.

We won't get the full details for a couple of months (split vote analysis which show various oddities, like the 1039 voters at the last election who party voted National in Helensville but wouldn't vote for John Key personally, or the 262 Epsom voters who wanted ACT, but not Rodney Hide) but there are some things to note.

1. If either John Banks or Peter Dunne had lost their electorates, Labour would have picked up a list seat, and National couldn't have governed without the Maori Party (same if the overhang had been one higher).

2. The Special Votes wouldn't have altered have altered the no-threshold counter-factual. National couldn't have governed without either the Maori Party or the Conservative Party.

3. The Maori Electorates were massive MMP supporters (Te Tai Tonga at 78.9% for keep, the only one below 80% support); Mangere, Manukau East, Rongotai, Wellington Central and Manurewa the strongest MMP supporters among general seats, each with 70%+ for keep. Clutha-Southland were the biggest supporter of change, at 55.4%. 14 of the 70 electorates voted for change, all National-Party held.

4. The massive number of informal votes recorded in Part A of the Referendum in the Botany electorate after the count of the advanced votes has been reduced to being in-line with everyone else (leaving me to wonder if one of the people counting the advance votes there on election day made the mistake the Electoral Commission warned others about, and thought you had to vote in both parts).

5. First Past the Post topped the valid vote in Part B in 68 electorates, with Epsom voters favouring Supplementary Member, and Wellington Central voters favouring Single Transferable Vote (and SM).

6. Labour came third in the party vote in Wellington Central.

7. Parliament has three new "backdoor MPs" - incumbent MPs who were re-elected on the list after losing their electorates - Chris Auchinvole and Paula Bennett from National, and Clayton Cosgrove from Labour. Auchinvole was beaten by Damien O'Connor, who was a "backdoor MP" in the last Parliament.

Finally, it seems likely there will be a couple of judicial recounts, with Paula Bennett behind in Waitakere by 11 and Brendan Burns behind in Christchurch Central by 45. Despite their name, judicial recounts don't actually have to be conducted by judges, but can be conducted by an officer of the Court with assistants without the judge even present.

The entry into the House of Representatives of "Unelected List MPs" is a common complaint about MMP.

And while the response: they were elected by the party vote, and voters were told who was on the party lists before they decided their party votes is a pretty good one, it's not enough for a lot of people, so mechanisms by which voters can have a greater influence over the exact membership of the House are often proposed.

A frequent suggestion is that, instead of having a list, party vote seats (I guess, you can't call them list seats!) in the House would be filled by the best runners-up from electorate races: by the candidates for that party who scored the greatest percentage of votes in electorate races, but without winning those electorates. It is argued that these people have established some evidence that they have personal support to be in Parliament (or at least more personal support than those who were candidates for their party who didn't do as well). There is something in this argument, although I'm not a convert to it. At least yet.

Given the (hopefully) upcoming review of MMP, and the likelihood of this being proposed in submissions, I thought I'd take a look at this through a counter-factual, using, as an example, the newly elected Green caucus. Except it's quite different. If, instead of a list, empty parliamentary places were filled by best losers, the Green Caucus would have been:

Russel Norman
Metiria Turei
Catherine Delahunty
Dora Roimata Langsbury
Kennedy Graham
James Shaw
Jack Taotokai McDonald
Holly Walker
Steffan Browning
Eugenie Meryl Sage
Sue Coutts
Joseph Burston
Robert Moore
and the possibility of Aaryn Barlow

And gone would be:

Kevin Hague
Gareth Hughes
David Clendon
Jan Logie
Denise Roche
Julie Anne Genter
and the possibility of Mojo Mathers

If I get some time, I may look at the other parties (they're slightly harder to do, because the other parties included list-only candidates), but I suspect there would have been a number of unexpected MPs, perhaps including some welcome returns. As you can see from the Green Party above, there might be a very different parliament: one that might have included our fastest ascension from the Youth Parliament!

Of course, this somewhat random group shows one of the major problems with using a best runners-up system (and with open list systems): the number of MPs a party gets was determined by its party vote, but without a closed list, no-one can know who those MPs will be. Given that I'm inclined toward some form of open list, this is something I'm going to have to think about (although at least an open list has the advantage that the overall list is determined by the voters across the country, rather than in particular electorates, where perhaps the reason someone did well, was that they were one of only three or four nominees).