Pushback on public media legislation

The legislation for our new public media entity ANZPM is now before Parliament and the clock’s ticking on public input. This week media executives, experts and some legal eagles cast an eye over it - and they want changes to protect its independence and make it match the promise of the government's policy.

“This isn't normal. Things that for many decades were givens - the checks and balances on the executive, the role of the judiciary or the civil service or the Electoral Commission, a media free from interference or vilification - now appear vulnerable,” former BBC journalist Emily Maitlis said in a speech that made headlines in the UK this week. 

She used the McTaggart Lecture - an annual address about the state of the media - to raise alarm about things that have gone wrong in British democracy under current management. 

And she was specific about political pressure upon the UK’s public broadcaster. 

“On the BBC board an active agent of the Conservative Party, a former Downing Street spin doctor ... now sits acting as the arbiter of BBC impartiality. According to the Financial Times, he's attempted to block the appointment of journalists he considers damaging to government relations,” Maitlis said.

She went on to say she had been censured by the BBC herself for one broadcast that was critical of the prime minister's communications director. She said that was done to appease the under-pressure Boris Johnson government, and disruptive reviews of BBC operations had been conducted for the same reason. 

Obviously, there's a lot going on at the moment in the UK, and the BBC is caught in the middle. 

But here in New Zealand, the government is re-shaping public broadcasting with a new public media entity - raising concerns about exactly what it will do and fears about who will have control over it. 

After Budget 2020 confirmed the funding it will have until 2026, former New Zealand Herald editor-in-chief Gavin Ellis warned the devil would be in the details that still weren't clear. 

“I have no idea what the structure of this entity is going to be like. This entity will be monitored by more state agencies than ever before. If we don't do something to ensure the absolute independence of this entity, from any forms of government control ...  then it will not gain the trust of the public,” he said.  

When the Aotearoa New Zealand Public Media Bill was tabled in June, National Party broadcasting spokesperson Melissa Lee echoed Ellis’s fear that an Autonomous Crown Entity (ACE) would be vulnerable to ministerial influence in the region. 

At the time, Broadcasting and Media Minister Willie Jackson told Mediawatch the government could not be completely hands-off with something funded with hundreds of millions of dollars - but he said no-one should worry about interference.

“Do you really think that the government will be managing interviews or trying to change stuff? We're already covered in the Broadcasting Act in terms of editorial independence - and we'll strengthen that up, no doubt, because editorial independence is everything,” he said. 

He insisted that existing broadcasting agencies like Te Māngai Pāho and NZ on Air already operate with independence from politicians. 

“It doesn't stop anyone from criticising or doing what they want, as they should do,” he insisted on Mediawatch last month. 

Public input on public media's future

This week Willie Jackson told Stuff the select committee process would give people “opportunity plus” to have a say, but they’ve got less than a fortnight to do it in writing. 

Parliament’s Economic Development, Science and Innovation committee is taking submissions only until 8 September. 

One outfit that's putting a lot of effort into its submission is Koi Tū, the Center for Informed Futures at the University of Auckland. 

It’s led by former prime minister's science adviser Sir Peter Gluckman and Gavin Ellis, who is an affiliate of the centre. 

A workshop this week brought together around 30 media executives, experts and lawyers to scrutinize the ANZPM Bill. After a second meeting this coming week, Koi Tū plans to write a submission which others can endorse. 

Last Wednesday they heard from the chief executives of the state-owned broadcasters which will cease to exist next year - Simon Power of TVNZ and RNZ’s Paul Thompson - and the gathering also heard independent opinions on the legislation from two overseas experts. 

On was Denis Muller, who grew up here and became a journalist and editor overseas at papers including the Sydney Morning Herald, The Age in Melbourne and The Times in London. 

When the government first signaled a new public media entity blending commercial TV and public service, Muller told Mediawatch it was a good idea to do away with thinking of digital, radio, television and print as “separate silos”.

But via video from Melbourne, he told this week’s Koi Tū workshop the ANZPM legislation did not adequately safeguard editorial freedom.

“There's no protection in the Charter - or anywhere else in the legislation that I could see - from retaliation ... if it reports in a way which displeases the government. We've certainly seen it happen in the UK and I have personally seen it happening here in Australia, where politicians are very much antagonistic towards public broadcasting,” said Muller, whose book Journalism and the Future of Democracy was published here this week. 

“If there's going to be a change in New Zealand, it's an opportunity to shore up the independence of public broadcasting. The legislation as drafted weakens it, because the existing Charter at RNZ is actually much stronger,” Dr Muller, now a fellow at the Centre for Advancing Journalism in Melbourne, told Mediawatch after the Koi Tū meeting.  

The meeting was held under the Chatham House rule, so Mediawatch can't report precisely what was said by whom without their permission. 

But plenty of people at the meeting shared Muller's concern about the entity's vulnerability to political influence. 

And among them was Gavin Ellis. 

“One of the things that came out of it very quickly was a sense that the bill has yet to be made fit for purpose,” Dr Ellis told Mediawatch.

“Too much of the bill leaves out those things that are in the ‘too-hard basket’. There is nothing about that relationship between its commercial and non-commercial operations beyond preserving what RNZ does now. It needs to at least give some indication on the way that the entity should act in certain circumstances,” Dr Ellis said.  

“An Autonomous Crown Entity, which is what is proposed, must have regard to government policy. There is a guarantee of editorial independence in the bill, but it is less than watertight. And there are many, many ways in which influence can be exerted,” he said. 

One media executive told the gathering public trust in the new entity would be “compromised from day one” under the legislation in its current form.  

“I agree entirely. It's absolutely vital that this new organisation begins with as much public trust as it can possibly generate. And trust isn't based on facts, trust is based on perception,” Dr Ellis said. 

“I'm not concerned about today's government. I'm not concerned about Willie Jackson's tenure as minister. I think he's doing a good job. I'm not concerned necessarily about the next government, if there's a change of party,” Dr Ellis told Mediawatch.  

“This legislation may be around for 25 or 50 years - and we don't know what government we're going to have in 10 or 15 years time,” he said. 

Senior lawyers commenting on the bill said they saw signs of haste in the drafting of it, and suggested amendments to the charter within the ANZPM Bill, which will be reviewed every five years, could solve some problems.

“This charter has fewer obligations, and is less aspirational than the existing Radio New Zealand Charter," Dr Ellis said.

That states RNZ’s purpose is to serve the public interest, and says freedom of thought and expression are foundations of democratic society. 

Dr Ellis also believes the bill doesn’t accommodate changes in technology. 

But how can you legislate for technological advances we can't foresee today?

“Well, for starters, you don't define ‘broadcasting’ the way it's defined in the Act - which is the same way it's defined in the now very old Broadcasting Act,” he said.

“We shouldn't get bogged down in trying to second-guess what technology may be, but to ensure that we will lay open the way for the adoption of whatever technologies serve the purposes of (ANZPM),” he said. 

The ANZPM Bill has implications beyond the new entity itself. Commercial media companies which produce important journalism fear the beefed-up public entity will be a stronger competitor which could monopolise the best staff and resources. 

ANZPM will also co-exist with other other public agencies funding content like NZ on Air and Te Māngai Pāho.

The bill says ANZPM must “take account” of those and “collaborate” with them and other media organisations, but it was not clear to anyone in the Koi Tū room what that really meant - or what it obliges ANZPM to do. 

“It wasn't a lack of intelligence on the part of the people in the room. It's simply not there,” Dr Ellis told Mediawatch. 

“It doesn't say what limits there should be on these interactions - and it has the potential to distort the market. It should not use the security of funding ... to have an unfair advantage in the commercial marketplace, for example,” he said. 

Re-drafting the legislation is also a risk. 

Including lots of specifically-worded obligations could make it a difficult yardstick, especially if - as Dr Ellis believes - too many state agencies will have oversight of ANZPM. Too many obligations may also tie the hands of the new management and governors. 

“Being overly prescriptive will set it up to fail - and that can't be allowed to happen,” Dr Ellis told Mediawatch. 

“This new entity is an extremely good idea. I'm enthusiastic about it. I'm excited by it because it's the opportunity to set up something for the 21st century. It's like a clean sheet of paper if you like to really set up the world's first ‘for-purpose’ digital media operation,” he said.