Please make a submission on the ANZPM Bill

 

The deadline is Thursday, 8 September 2022.

 

Click here and follow the links to make a written or oral submission.

 

The quickest option is to download this file, and make it your submission by uploading it to the Select Committee page after you've entered your contact details. But if you have time it is more impactful if you put it into your own words.

The biggest strength of our submissions is that we are the public media audience. The Select Committee will receive submissions from industry, lobby groups and business but they really want to hear from the public.

So make it clear in your submission which audience group you are in and that audiences are the most important stakeholders in the ANZPM.

 

Format your submission with a heading like:

 

Submission on the Aotearoa New Zealand Public Media Bill

To the Economic Development, Science and Innovation Committee

 

The website collects your name, contact details and whether you want to appear in person to the Select Committee. But in your submission it is good to add:

• Date
• Your age, ethnicity, region and any other details that you think are important.
• And of course, your submission.

Below are some of our recommendations for you to consider, which will be the basis of our submission.

 

You are welcome to cut and paste any of this into your submission if you wish.

 

And you are welcome to refer to the submission of Better Public Media Trust if you wish.

 

Here is a link to the Bill itself.
 

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BPM Recommendations on the Aotearoa New Zealand Public Media Bill:

 

There are four main problems with the Bill:

 

1 - Lack of separation from the Minister. The answer is to close loopholes and create an Independant Crown Entity.

2 - No independent oversight of the Board to make sure they are fulfilling the Charter. Create a separate Commission, with an interim Oversight Board until it is established.

3 - No clarity over what is commercial and non-commercial. Clearly define which functions are commercial.

4 - Lack of sustainable funding. Establish a levy or a ring-fenced tax.

 

Plus some specific improvements:

 

5 - Definitions. Use distribute instead of broadcast. 

6 - The Charter. Needs strengthening, mainstreaming of minority content, list protected genres, and all content must be free of charge.

7 - Functions. Needs ability to enter international co-productions, to schedule content, promote content, and montiro it's performance.

 

Problem 1 – Separation from the Minister.

 

The Bill makes ANZPM an Autonomous Crown Entity, which actually gives it less independence from the Minister than RNZ and TVNZ currently have as Crown Owned Entities. The Bill does have added independence safeguards, but in our opinion these are not enough and would not stop a Minister from applying influence to the organisation.

This matters because ANZPM will be a major news outlet and will have the power to influence public opinion. This directly affects the fortunes of politicians including of course, the Minister. It is imperative that the Minister cannot influence the ANZPM in any way, whether it be through appointing or sacking board members, issuing directives, or approving annual budgets.

And while we may trust the current government and opposition to not abuse such a power, what about a government in 15 or 20 years time?

In recent years the BBC and ABC have been under attack from their governments seeking editorial changes. We also have our own examples from NZ’s recent history:

• the Key Government freeze on RNZ funding took on added resonance considering Gerry Brownlee and other National MPs labelling it “Red Radio”.
• Stephen McElrea, former National Party electorate chair was appointed to the NZ On Air board and complained about documentaries that were unfavourable to the National Government, leading to uncertainty among independent producers.
• Former Press Secretary for a National Party Prime Minister, Richard Griffin was appointed Chair of RNZ and later at Select Committee, rejected calls by BPM for increased funding to RNZ. That was despite an internal report indicating budget constraints were affecting news and core services.

 

Solutions to Problem 1 - Separation from the Minister

1 - Improve the Editorial Independence clause

Section 15 of the Bill lists when the Minister cannot give a directive to ANZPM. But it has loopholes which a Minister could exploit to influence the editorial direction or abilities of ANZPM. Section 15 needs to be redrafted to prohibit:

• directives in respect of general editorial direction
• directives regarding scheduling or prominence decisions for content

 

2 - Independent Crown Entity

Another solution is to make ANZPM an Independent Crown Entity rather than an Autonomous Crown Entity. This would ensure:

• all appointments by the Minister must go through the Governor General adding a layer of scrutiny
• the Minister cannot make any directives to ANZPM based on government policy
• the Minister cannot remove a board member unless they have ‘just cause’ which includes misconduct etc.

Against this is the custom that Independent Crown Entities usually have a quasi-judicial role - like the BSA, Commerce Commission or the IPCA. Although the ANZPM has no adjudicatory role, being a watchdog on democracy and politicians may warrant the extra protection of being an Independent Crown Entity.

Another barrier is that Independent Crown Entity’s don’t normally run businesses, and ANZPM will have some commercial activities, selling advertising. But there is nothing in the Crown Entities Act that stops Independent Crown Entities from operating commercially, and such a limit seems to be a custom rather than a rule.

We think ANZPM’s unique importance as a pillar of the 4^th estate and vulnerability to influence from the Minister requires the extra protection of an Independent Crown Entity.

 

3 - Statement of Independence

The independence of ANZPM needs to be clearly stated in the Bill. Other organisations with similar power to affect politicians have clauses that make their independence very clear. We recommend a similar clause be added to this Bill.

 

Problem 2 – Lack of Oversight

 

There is a total lack of oversight of the ANZPM Board and the Minister. It will be easy for the Minister and Board to ignore the Charter while paying lip service to its aspirations.

Plans to establish an oversight board within MCH are flawed because it will be answerable to the Chief Executive of MCH and the Minister. It will not be capable of independence, and just as importantly, it will not be seen to be independent.

 

Solutions to lack of oversight:

1 – A Public Media Commission

This Commission would be an Independent Crown Entity with the following powers:

• to monitor the operations and direction of ANZPM, and its relationship with the Minister.
• to issue directives from the Minister to the ANZPM Board that are compliant with the Charter.
• to hear complaints from the public or media organisations relating to breaches of the Charter, and adjudicate on them.
• to report to Parliament annually on Charter performance and issues.
• to warn Parliament of potential Charter breaches whenever required.
• to access ANZPM’s financial information and make recommendations on annual budget decisions.
• to attend ANZPM Board meetings as advisers.

The Commission would be publicly transparent within its own operations, regularly engaging in public consultations over matters of concern, perception and trust. Rules would ensure the Commission maintains confidentiality and commercial sensitivity for ANZPM.

The Public Media Commission could be a branch of the Broadcasting Standards Authority, depending on the outcome of the current Regulatory Review.

 

Commission members could be nominated to the Minister by various means including:

• Te Mātāwai – this is an independent government body that oversees and appoints board members to Māori TV and other Reo revitalisation organisations.
• Civil society – a cluster of organisations such as Consumer NZ, Better Public Media Trust, Children’s Screen Trust, and National Association of Media Educators. Other organisations could be included in the cluster or form a second cluster, such as the Ombudsman, the BSA, NZ On Air, industry guilds, unions, and audience representatives. This is similar to the appointment process for Te Mātāwai members.
• ANZPM staff.

The Minister would then retain power to appoint but for some of the Board’s positions, only from those nominations.

Interim Oversight.

The ANZPM Board will require monitoring from its first decision. We recommend an interim board be established by the Minister for this purpose. It could have members nominated any of the organisations listed above or from the current Establishment Board for ANZPM.

 

2 – Independent ANZPM Board members not appointed by the Minister

Currently all Board members are appointed by the Minister, with approval from the Minister of Finance (Treasury) and two after consultation with the Minister of Māori Development. This fails to ensure public media skills for the Board, and focusses the Board too heavily towards its commercial role.

 

At least two appointments to the Board should be made by someone other than the Minister, and that could be a Public Media Commission as described above, or any of the suggested appointment mechanisms described there, including Te Mātāwai, a civil society cluster, or ANZPM staff.

 

3 – Allow ANZPM to be monitored by civil society

Even if there is no official oversight, civil society groups like Better Public Media Trust can monitor the organisation voluntarily, but this is far from ideal because it is impossible to get relevant information. The Official Information Act does not help when an organisation has a commercial function like TVNZ because it can claim any important information is commercially sensitive. This was the case when Save TVNZ 7 was trying to get TVNZ 6 & 7 ratings and research information while the government was closing it down, even though they were non-commercial channels.

 

In the same way, ANZPM will use its commercial activities to shield information from the public, even if it relates to non-commercial activities. As an early example of just that, this week BPM were denied information about projected surpluses for ANZPM, by MCH who claimed it was commercially sensitive. We would probably be successful in an appeal to the Ombudsman but this can take years to process, as was the case with our TVNZ 7 appeal.

 

If there is no other oversight, at least an exception narrowing the OIA’s definition of commercial sensitivity for ANZPM to avoid scrutiny, will help us fulfil a watchdog role.

 

Problem 3 - No clarity over what is commercial and non-commercial

 

The Minister and previous Minister have repeatedly stated ANZPM will preserve all existing non-commercial activities. They have also declared that ANZPM be a not-for-profit entity. Yet, neither of these important values are stipulated in the Bill.

 

Schedule 1 Transitional, savings, and related provisions states that pre-existing services must remain commercial-free, but because it’s in the Transitional schedule, it’s unclear how long that stays in force. Despite this, ANZPM’s non-commercial services will change technology over time, most likely from radio to some form of digital distribution. This will allow this clause to be ignored and advertising to be included. This clause is no guarantee that listening to ANZPM content will remain non-commercial.

 

The ANZPM news website presents another problem. Will it be commercial like TVNZ or non-commercial like RNZ? The guarantee in Schedule 1 would suggest the combined website would be non-commercial, but again how long does that transitional provision last?

 

Solutions

Non-commercial or commercial services must be defined within the Bill. It is preferable that commercial functions are defined, leaving everything else to be non-commercial.

 

Not-for-profit status must be declared within the Bill, or future Boards and Ministers will ignore it.

 

Problem 4 – Sustainable funding

 

According to the Bill, a “sustainable long-term funding model” is a government objective, but the Bill does not establish any kind of funding mechanism. This absence suggests funding will continue to be decided each year by the Minister. This continues the existing problem that allows Ministers to influence the effectiveness of ANZPM to hold power to account.

 

Solution to Sustainable funding

It is impossible to bind the hands of future governments, but a separate sustainable funding mechanism removes the need for future Ministers to budget for ANZPM, and makes it harder to justify “saving money” by halving its operating budget, for example.

 

A separate funding stream would almost completely remove the power of future governments to influence ANZPM. More importantly it would almost completely remove the perception of influence as well. While ANZPM receives funds from the Minister, it will always be seen as potentially biased.

 

Levy

For many years, Better Public Media Trust has advocated for a levy on ISPs, digital advertising and screen device sales and this idea is slowly gaining popularity. A new levy could be introduced or the existing Telecommunications Development Levy could be repurposed.

 

Ring-fenced Tax

Another solution is a separate tax ring-fenced from the general budget that is exclusively for public media. It’d be a bit like GST but a lot smaller and paid annually with our income tax. This type of public media tax has been successful in Finland since 2013, where it is just 0.68 of a percent on all income tax up to a total of €140 per person, and 0.35 of a percent on the revenue of businesses. This raises €508m which is dedicated to Finland’s extensive public media services.

Either a levy or a ring-fenced tax, should be included in the ANZPM Bill to ensure genuine sustainable funding and remove both Ministerial and commercial pressures from New Zealand’s public media provider in future decades.

 

Specific Improvements

 

5 – Definitions

‘Broadcasting’

The Bill uses the word broadcasting throughout to describe the ANZPM’s main activity, when it should be less specific - perhaps distribute.  Apparently broadcasting matches the Broadcasting Act, but if a better word like distribute is defined in this Bill, there is no need to use a confusing and outdated word like broadcasting.

The Bill does attempt to redefine broadcasting to include telecommunications but as well as conflicting with the ordinary meaning, the wording still limits the activities of ANZPM by excluding:

• Printed material. ANZPM could not release:
  • children’s books like the ABC does,
  • any kind of merchandise for popular programmes like Country Calendar, or
  • any hard copy material for hard-to-reach audiences.
• Live performances. ANZPM could not produce:
  • music concerts as do Triple J in Australia and Radio 1 in the UK
  • classical music concerts by the RNZ Concert network, or
  • speaking tours, live interview events like TED, or Readers and Writers Fest
• It specifies reception by “the New Zealand public” which limits content for audiences outside New Zealand, such as Kiwis living abroad or international audiences beyond NZ and the Pacific.

On top of all this, broadcasting is not future-proofed. Future technologies are likely to be multi-directional, like social media already is, but broadcasting is mono-directional from ANZPM to the audience. The ANZPM must be allowed to enable multi-directional content so engage should be incorporated into the activities, or distribute should be defined to include facilitating multi-directional content.

 

‘Content’

Content is defined as sound and visual images, with a subsequent definition of visual images to include alphanumeric text and software. This is confusing and inaccurate.

If content must be defined, it should be “includes sound, images, text, performance, artwork, code, algorithms, apps, games and audience content interfaces”. But it seems better to leave it undefined so that ANZPM and the courts, can apply their own suitable definition as required.

The Bill also links content to an intention to “inform, enlighten or entertain” as well as promote products and services. This sub-clause excludes content with other intentions such as to protect, challenge, organise etc. Intentions for the content should be removed from the definition.

 

6 - The Charter

Compared to other charters around the world or even previous charters in New Zealand, the ANZPM Charter is weak. While it uses worthwhile words, it lacks coherence and authority. There is a lot of replication with other sections such as s 10 Objectives and s 11 Functions, which should be pared down for clarity.

• We’d like to see stronger wording, like the Canadian version which declares the CBC “serve to safeguard, enrich and strengthen the cultural, political, social and economic fabric of Canada”.
• The Charter must require ANZPM to give mainstream prominence to its niche and minority content. Hiding public media content without telling audiences where it is, or playing it early on a Sunday morning contradicts public media aims and values of social cohesion.
• The Charter should list genres that are expected to be covered, to ensure that the Charter performance is assessed against them. The list shouldn’t be exhaustive but it is necessary for reporting purposes.
• Currently the Charter allows the ANZPM to occasionally charge for first run content. This is inconsistent with the ethos of public media and should not be allowed.

 

7 – Functions

 

Much of this section repeats the Objectives and Charter. To avoid confusion, this section need only describe actual functions of ANZPM. And unfortunately, a few potential functions have been missed:

• the ability to enter a co-production with an international producer,
• to schedule content,
• to promote content, and
• to monitor its own performance.