Gavin Ellis: Heavy work ahead on Aotearoa NZ’s Public Media Bill

ANALYSIS: By Gavin Ellis

The Aotearoa New Zealand Public Media Bill — introduced to Parliament this week — will have a long journey before it is fit for purpose.

The Bill gives effect to the government’s plan to replace TVNZ and RNZ with a new entity designed for the digital age, but the legislation as it stands does little more than cement the two public broadcasters together.

On first reading (mine, not Parliament’s), it looks like a legislative instrument to give effect to the merger, but its stated intent and functions are much wider. This is supposed to be the legal foundation upon which a new age of public media is to be built.

The general policy statement accompanying the Bill says: “This Bill seeks to strengthen the delivery of public media services by establishing a new public media entity.” It may achieve the latter, but it falls far short of guaranteeing its objective.

The Bill falls short on many fronts: Matters that should be covered are omitted, others are dealt with in obtuse ways, boilerplate clauses are employed in place of purposeful creativity, and ironclad protection of the public interest is absent.

The Bill’s shortcomings are too numerous to set out all of them, but a few key failings give a sense of how much work must be done on the proposed law through its committee stages.

The Bill states the new organisation will be a Crown entity but does not stipulate the category under which it must fall. We need to go to Schedule 2 Part 1 to find that Schedule 2 of the Crown Entities Act is to be amended to make Aotearoa New Zealand Public Media an autonomous Crown entity.

Why the change?
Both TVNZ and RNZ are currently Crown companies. Why the change?

Was it because autonomous Crown entities “must have regard to government policy when directed by the responsible Minister”? While the new public media organisation will be protected against ministerial interference on matters relating content and news gathering, there are many ways to skin the cat.

Why was the new entity not designated an Independent Crown Entity which is “generally independent of government policy”?

The Bill states that, in accordance with provisions of the Crown Entities Act, the Minister of Broadcasting and Media will appoint the board of the new entity, but the new Bill stipulates at least two of those directors will be nominated by the Minister for Māori Development.

As things stand, that means Willie Jackson will appoint the entire board because he holds both portfolios. The proposed legislation does not anticipate that aggregation of power.

Ministers are writ large across the Bill. There is oversight of the new entity by no fewer than three, possibly four. Aside from the Minister of Broadcasting and Media, the finance minister has direct powers over financial issues and the Māori development minister has Te Tiriti oversight.

The Crown Entities Act provides for the broadcasting minister to appoint a monitor to act as his eyes and ears over the new entity. The Ministry for Culture and Heritage has been working behind the scenes to gear itself to take on that role – and an even wider role across all media if its current strategy framework draft is anything to go by. So, it is possible that its minister (currently Carmel Sepuloni) will also have a look-in.

Independence absolutely vital
I do not think that augers well for the independence that is absolutely vital if the new body is to gain and retain public trust and confidence.

Yes, the Bill does carry over the provisions in existing legislation that tells ministers to keep their hands off editorial matters. However, there are too many other mechanisms by which politicians can influence the direction of the new organisation.

There is a charter that should provide its own protections, given that the relevant minister’s actions must be consistent with it. However, the charter in the Bill consists largely of boilerplate generalities that are less aspirational than the existing RNZ charter.

It is in marked contrast to the BBC Charter, which is erudite, explicit, and carries more direct obligations.

Submissions on the Bill will, no doubt, focus on the charter and it may yet go through iterations that improve it. One necessary improvement relates to the digital environment that made all of this reorganisation necessary. Although there is passing reference to online services, the tenor of the Bill is rooted in the present, not the future.

The entity’s principal purpose is “broadcasting”. That would be fine if the term was defined in broad enough terms. However, it talks of “transmitting” and “reception by the New Zealand public by means of receiving apparatus”. That hardly conjures up pictures of very smart interactive devices and a community for whom one-way linear transmission is antiquated.

The charter does state that one of its principles is “innovating and taking creative risks” but that looks tame alongside the BBC Charter’s clause on technology that states it “must promote technological innovation, and maintain a leading role in research and development”.

Technologically aspirational requirements
I would have thought that, in order to set the stage for a future-oriented organisation built for the digital age, the Bill just might contain some technologically aspirational requirements.

It is not the only element of the new organisation that is absent from the proposed legislation.

Aside from a pressing need to provide far more robust independent governance, the Bill’s most glaring omissions relate to finance and internal structures.

The Bill contains an explicit requirement that RNZ’s commercial-free services will continue, and where a charge is applied to new services on first broadcast it will later be free. There is no reference in the Bill, however, to TVNZ’s current commercial status, nor to annual appropriations from government.

It takes a careful reading of the Bill’s schedules and amendments to those in other acts to determine whether the current practice of channelling RNZ’s funding through NZ on Air will continue. Reading between the lines it appears that a more direct funding stream is being contemplated, with some form of coordination with other bodies such as NZ on Air and Te Māngai Pāho.

The Bill itself makes no direct reference to future requirements for TVNZ to pay a dividend but a tick in a column in the Bill’s schedule suggests the new entity will not contribute to the Treasury coffers.

Beyond that, the finances of the new entity are a deep void. The new organisation faces real challenges in reconciling public funding and commercial revenue. It must also determine the division of expenditure associated with programming to meet the expectations created by both sources.

No legislative guidance
However, there is no legislative guidance on how these challenges should be met. There is total silence on commercial expectations, and on the mechanisms by which any continuity of government funding will be calculated or guaranteed. The Cabinet papers released to date suggest funding matters will be dealt with through the Ministry for Culture and Heritage. So why is that not explicit in the Bill?

Internal structures — which must address the cultural and funding process differences between commercial and non-commercial broadcasting — are apparently entirely in the hands of the Establishment board as there is nothing in the Bill that mandates the unique internal structure that will be needed to satisfy both imperatives. Does Parliament have no view, for example, on whether news and current affairs should be structurally separated from a commercial enterprise, say as a separate subsidiary with its own statutory independence?

Why is there no requirement to follow the Irish precedent whereby the state broadcaster RTÉ must adhere to a Fair Trading Policy that complies with EU rules on State aid? That policy requires RTÉ “to trade in a manner which ensures that public funds are not used to subsidise RTÉ’s commercial activities…[and] that ensures that RTÉ’s commercial activities are compatible with its public service objects.”

These questions, and more, will be raised during the Bill’s select committee hearings. My fear is that the timetable set out for the legislation — it must be passed and in force by the end of the year — will truncate the process to the point where the necessarily exhaustive examination of its provisions will not take place.

Last week I set 12 labours for the new Minister of Broadcasting and Media. This Bill, as it currently stands, will make Willie Jackson’s tasks even more Herculean.

Dr Gavin Ellis holds a PhD in political studies. He is a media consultant and researcher. A former editor-in-chief of The New Zealand Herald, he has a background in journalism and communications — covering both editorial and management roles — that spans more than half a century. Dr Ellis publishes a website called Knightly Views where this commentary was first published and it is republished by Asia Pacific Report with permission.

This content originally appeared on Asia Pacific Report and was authored by APR editor.

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