Posts by Graeme Edgeler
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Legal Beagle: It's (almost) never that simple, in reply to Sacha,
I am pretty convinced by your argument
I’m not, but then I’m not a judge.I'm not convinced either. I just know enough to know that I don't know the answer.
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Legal Beagle: It's (almost) never that simple, in reply to Sacha,
Yet that was exactly what was publicised before the event. Someone changed their minds.
Perhaps it was both. In any event, I don't think it would be determinative. If Key's people suggested it, and Radio Live agreed, that doesn't make them any less in control.
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Legal Beagle: It's (almost) never that simple, in reply to Keir Leslie,
The suggestion is that Radio Live swapped an hour of radio for an hour of the PM's time, right? And that because there was a swap, it's not a donation. But I don't know if I agree that the PM's time works like that.
I'd agree that Radio Live did commercially well out of it. But I don't know if that's enough to make it not a donation.
Which is basically where I got to when putting the contrary argument:
but they got back something of value in return, and the commercial nature of that transaction may be enough to see it fall outside the legislative meaning of “donation”.
Or maybe not. Maybe it’s an inherent feature of politicians that that will (almost) anything for good publicity. Even if Radio Live got value from John Key’s appearance, does that mean he gave something up (like normally happens in a commercial transaction)? And is that even the defining point of a donation anyway?
Which way will the Electoral Commission and/or police and/or the District Court fall? I haven't a clue.
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Legal Beagle: It's (almost) never that simple, in reply to Sacha,
I imagine the real degree of that will be pivotal, including who made the decision not to take calls.
I imagine that was Radio Live, who were trying really hard not to break the law. If you have the PM taking lots of calls on the radio two months before an election, someone is going to ask about politics, which was something Radio Live was anxious to avoid, thinking that would protect them from allegations of breach of the Broadcasting Act.
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Legal Beagle: It's (almost) never that simple, in reply to Keir Leslie,
But Key wasn’t engaged in any kind of commercial transaction. So that’s a problem. (
The suggestion that Radio Live didn't gain a real and direct benefit from Key's hosting is difficult to sustain. A high profile host, who brings high profile guests, is of substantial value. It wasn't a cash transaction, but that doesn't mean the barter wasn't a fair trade. Ignoring the possibility of a fine for the moment, I'd have said Radio Live did pretty well out of this deal.
(After all, if this was a commercial transaction, isn’t it possible for it to violate rules on the PM taking outside employment?)
No. First, the rules, such as they are, are cabinet rules that prohibit ministers doing certain things without the PM's permission. I reckon he had that. Second, a commercial transaction isn't necessarily 'employment', and ministers engage in personal commerce all the time.
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Legal Beagle: It's (almost) never that simple, in reply to Ian MacKay,
The debate was whether the “free” use of those billboards was a donation or an election expense.
Had he used billboards owned by his company, Clarkson would, in effect, have been depriving his company of money. There would be a financial cost involved, albeit not a cash cost in the same way as a donation of money. That isn't the case here. What would Bob Clarkson Construction usually charge to rent a billboard? $3,500 per month, apparently. What does Radio Live normally charge someone to host an hour of talkback? They don't. They normally *pay* someone to host an hour of talkback.
The direct analogy would be Radio Live gifting Key an hour of advertising time, but they didn't do that (that would be illegal for other reasons). They had Key host one of their shows but retained editorial control in a way they wouldn't have had if it had been an hour given to the National Party to do with what it would. That may make all the difference.
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Legal Beagle: It's (almost) never that simple, in reply to Ian Dalziel,
or were they special ring-ins for the ‘celebrity’ host – I believe the impression was given that they were Key’s friends doing him a favour – perhaps the normal speaking fees of these individuals should be taken into the equation as donations as well
Donations to whom? Key? Why wouldn't they be donations to Radio Live that Key arranged?
Also, for the purposes of the Electoral Act, it is abundantly clear that personal time given to a campaign is not a donation.
I’d like to know what an hour of Key’s time is worth, as this was hardly essential Government work, it must be publicity seeking (electioneering)
So a taxpayer donation of Key's valuable time to Radio Live? I guess that's another angle...
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Legal Beagle: It's (almost) never that simple, in reply to Sacha,
And it would be interesting to see how the arrangement with the station was covered off. What constitutes consideration if no money changed hands?
Of course, there's also the possibility that if this is seen as a commercial transaction between Key and Radio Live, that this increases the likelihood (perhaps still low) of Key being charged as a party to the unlawful broadcast of the election programme.
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"One of these days...
... I'll remember to turn comments on"
[guess who got the "classic 39" for Christmas] -
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 :-)