[108] As noted, the video was never broadcast by a broadcaster, except as part of
news or current affairs programmes, after the Commission’s intervention. That being
so, we cannot know whether any programme in which it appeared would amount to
advocacy against the National Party or encourage voters not to vote for the party.
[109] What can be said, however, is that if viewed in isolation the song and video
were comments for purposes of s 70. That is so because they were personal political
views offered by people who were neither candidates nor party representatives.
[110] In the result, we agree with Clifford J, but for different reasons, that on the
evidence the song and video were not election programmes and were properly
characterised as comments for purposes of s 70.
Overview
[111] We have examined the two Acts separately, but we find that the interpretation
we have adopted reconciles them so far as we can while remaining faithful to what
we understand to have been Parliament’s objectives. We have tried to provide the
Commission with the guidance that it sought.
Decision
[112] The appeal is dismissed and the declarations made by Clifford J are upheld in
this Court, though for different reasons:
(a)
The song is not an election advertisement for the purposes of s 3A of
the Electoral Act.
(b)
The video is not an election advertisement for the purposes of s 3A of
the Electoral Act.
(c)
The song is not an election programme for the purposes of s 70 of the
Broadcasting Act.
(d)
The video is not an election programme for the purposes of s 70 of the
Broadcasting Act.