Don’t blame the Electoral Commission – it’s the law that’s an ass

Image from Planet Key music video.

Image from Planet Key music video.

Darren Watson’s Planet Key song has been pulled from the airwaves, unable to be played on TV or the radio, except for news and current affairs purposes. The Electoral Commission has advised that:

In the Electoral Commission’s view, the Planet Key track cannot be broadcast on radio or television because it is an election programme.  There are strict rules in the Broadcasting Act 1989 that prohibit the broadcasting on radio and television of material by third parties that appears to encourage voters to vote or not to vote for a political party or candidate.

The Electoral Commission’s advice is sound. Section 70 of the Broadcasting Act 1989 prohibits the broadcasting of election programmes, save for some narrow exemptions. Section 69 of the Act defines an election programme, and one of those definitions is:

A programme that encourages or persuades or appears to encourage or persuade voters not to vote for a political party or the election of any person at any election.

Planet Key is clearly covered by the s 69 definition of an election programme. It appears to encourage or persuade voters not to vote for John Key and the National party. Leaving the video aside, check out the line:

“If you want compassion, don’t vote for me”.

And none of the s 70 exemptions apply, leaving the Electoral Commission no choice but to declare the song an election programme that may not be broadcast.

But what of the New Zealand Bill of Rights Act? After all, s 6 of the Bill of Rights Act provides that where legislation can be given a meaning consistent with the rights and freedoms contained in the Bill of Rights, that meaning shall be preferred.

Well, if a broadcaster were to continue playing Planet Key, and were referred to Police and were prosecuted, it’s entirely conceivable that a Judge could engage in some creative interpretation that would allow such satirical songs to be played in future. However, I’m not sure it’s the role of the Electoral Commission to try and second-guess what a creative Judge might do in the future. The Commission is there to give its interpretation of the law, and the law is unfortunately very clear on this issue.

This is an issue for Parliament to fix. Unfortunately, it’s been brought to the attention of our politicians before, and they’ve done nothing. I guess our politicians aren’t keen on the idea of legislating to make it easier for us to extract the Michael from them…

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