The Economic Development, Science and Innovation Committee has examined the Aotearoa New Zealand Public Media Bill and recommends by majority that it be passed. We recommend all amendments by majority.

This bill would create a new public media entity—Aotearoa New Zealand Public Media (ANZPM)—as an autonomous Crown entity. The bill would provide for the new entity’s objectives, functions, and governance, along with transitional arrangements. Radio New Zealand (RNZ) and Television New Zealand (TVNZ) would become subsidiaries of ANZPM and eventually be disestablished. All staff, property, assets, and liabilities would transfer to ANZPM on commencement.

The bill is an omnibus bill that would repeal the Radio New Zealand Act 1995 and the Television New Zealand Act 2003. It would also make consequential amendments to a number of other Acts.¹

ANZPM would provide public media services for New Zealand, which could include broadcast radio, linear television (that is, traditional television broadcasting over airwaves or satellite), and digital media services such as streaming.

The establishment of ANZPM is intended to help:

• ensure public media keeps up with rapidly changing media systems

• increase efficiency in public media provision

• develop a more sustainable long-term funding model for public media provision.

As part of our consideration of the bill, we have examined its consistency with principles of legislative quality. We had one concern with clause 22, the review clause, which we discuss later in this commentary.

This commentary covers the main amendments we recommend to the bill as introduced. We do not discuss minor or technical amendments.

The bill as introduced uses the term “broadcasting” to describe how ANZPM would deliver content to its audiences. We heard from submitters that the term is outdated, and not in line with the goals of a future-focused media entity.

Submitters suggested that the term used to describe how audiences receive content from ANZPM should be platform-neutral (that is, not specific to linear models such as television or radio) and described in clear, simple terms.

We agree that ANZPM should not be restricted to linear content models such as television or radio. On this basis, the bill should not use language that suggests that television or radio is dominant, or prioritised over other means of providing content.

We therefore recommend replacing the term “broadcast” with “provide” throughout the bill. Further, we recommend defining “provide” in clause 4 to include “broadcasting, selecting, commissioning, and producing content”. For consistency, we also recommend that references in the bill to ANZPM as a “public broadcaster” or similar be amended to “public media entity”.

We believe these changes would more clearly reflect the intent that ANZPM would provide a wide range of content across a wide range of platforms. We consider that the changes would also more effectively enable ANZPM to fulfil its charter obligations, as they would remove the limitation that the narrow definition of broadcasting would place on the entity.

We are concerned that the bill as introduced would not provide strong enough protections for the editorial independence of ANZPM. Submitters were particularly concerned about Ministers seeking to influence ANZPM on editorial matters. We believe that the bill needs stronger provisions to prevent any interference from Ministers to ensure the public’s trust.

To this end, we recommend various amendments, discussed below.

Clauses 15(3) and 15(5) of the bill as introduced stipulate that the Minister would not be able to give direction to ANZPM for any reason related to “broadcasting, selecting, commissioning, or producing particular content”.

We are concerned that itemising a selected list of ANZPM’s activities that the Minister may not give direction on could be interpreted as exhaustive. That is, that the clause could be read to mean that the Minister could give direction on other matters related to content and editorial decisions.

For that reason, we recommend amending clause 4 to define “editorial matters” and “editorial independence”, and to adjust the definition of “content”. We consider that using these broader terms and stating their non-exhaustive definitions in clause 4 would strengthen the editorial independence of ANZPM.

We recommend that “editorial matters” be defined to include:

• any content or advertising

• any allegation or complaint relating to content or advertising

• the gathering or presentation of news or current affairs content

• responsibility for the standards administered under the Broadcasting Act 1989.

These changes mean the bill would include the same protections currently in RNZ’s and TVNZ’s legislation. We believe these changes will help to clarify that ANZPM is protected from all the same possible means of influence that RNZ and TVNZ currently are.

We consider that public trust in public media is vital to its success. Public media entities must be free of perceived or actual government influence and their governing legislation must ensure that editorial independence is firmly maintained. This includes ensuring that Ministers exercise their relevant powers in a way that respects editorial independence.

We recommend inserting new clause 10A(2) to clarify the responsibility of Ministers related to editorial independence. New clause 10A(2) would make it clear that Ministers must exercise the powers granted by this legislation in a way that is consistent with ANZPM’s editorial independence.

To ensure clear and robust editorial independence and public confidence in ANZPM, we recommend removing clause 15 (which sets out the Minister’s role) and inserting instead new subpart 1A.

New subpart 1A brings together the existing and recommended new clauses in the bill that collectively provide for ANZPM’s editorial independence from Ministers. These clauses are:

• 10A(1) which would affirm that ANZPM is editorially independent from the Government

• 10B which would prevent Ministers, or any person acting on behalf of a Minister, from giving directions on any editorial matter to any person connected with ANZPM, including but not limited to employees, contractors, or consultants

• 10C which would affirm that carrying out ANZPM’s charter is a statutorily independent function

• 10D which would prevent Ministers from removing members of ANZPM’s board for any reason related to editorial matters.

Clause 11(2)(k) in the bill as introduced would require ANZPM to “foster critical thought, counter misinformation, and promote informed and many-sided debate.”

We are concerned that having a publicly owned broadcaster decide what is classified as “misinformation”, in order to counter it, might lead to unforeseen and unintended outcomes. In particular, requiring ANZPM to counter what it determines to be misinformation might affect its ability to provide impartial and balanced current affairs content. The phrase could also erode public faith in ANZPM, as it could be seen as stifling debate and reducing the diversity of views provided.

We recommend amending clause 11(2)(k) to remove the phrase “counter misinformation”. We also recommend amending clause 13(1)(a) to add “accuracy” as an operating principle of ANZPM. We think that this would balance the need for ANZPM to promote a diversity of viewpoints as well as provide reliable and factually accurate content.

The bill as introduced includes clauses 11, 12, and 13, which together compose the charter of ANZPM. Clause 11 states the entity’s objectives, clause 12 its functions, and clause 13 sets out its operating principles.

We heard the view that the bill as introduced does not identify clearly enough the clauses that make up the charter. Some submitters questioned the clarity of the charter, which also may indicate that the charter is not clearly identifiable in the bill as introduced.

We consider that the basic objectives, functions, and operating principles of ANZPM should be clear to all. Therefore, we recommend inserting clause 10E to make it clear that clauses 11, 12, and 13 compose ANZPM’s charter. We consider that new clause 10E would help to clarify which clauses compose the charter, which in turn would make reviewing ANZPM easier in future.

We heard from submitters that ANZPM should play a role in providing content that supports artistic expression. Submitters told us that public media entities had the opportunity to commission and provide a wide variety of content. The content ANZPM provides should support and reflect the artistic diversity of the media sector.

We agree with submitters that ANZPM should reflect the media sector and artists who create content for different audiences. We recommend inserting new clause 12(1)fa so that it would be a charter function for ANZPM to support and stimulate artistic diversity.

The bill as introduced would require ANZPM to ensure that content and services are available to New Zealanders of all ages, genders, abilities, and ethnicities.

Submitters expressed concern that not explicitly requiring ANZPM to serve certain audiences would mean that they would be excluded. Submitters suggested that a number of groups should be explicitly mentioned in the charter, including children and young people, and disabled people.

We consider that a public media entity should serve many different audiences, including ones that have been underserved in the past. However, we consider that the charter should not be overly prescriptive, and should enable ANZPM to determine how it could best serve traditionally underserved audiences. In particular, we see it as crucial to long-term success to allow for alterations in the approach to media provision that would support future technological developments and demographic changes.

Therefore, we recommend removing and replacing clause 11(2)(h)(ii) to explicitly include disabled people and children and young people as audiences who ANZPM would be required to serve. We also recommend amending clauses 12(1)(h)(i) and (ii), and 13(1)(d)(i) and (ii) to include a similar statement.

We heard that the primary purpose of ANZPM is intended to be to provide public media services for New Zealand. Some submitters were concerned that ANZPM’s ability to earn commercial revenue might divert resources away from its public media mandate. Others suggested that ANZPM should not be able to earn commercial revenue, and should focus solely on providing public media.

We consider it appropriate for ANZPM to earn some commercial revenue. Commercial revenue could reduce the financial burden on the taxpayer. It could also enable the entity to provide a broader range of content than it could with government funding alone. We believe that commercial media entities (such as TVNZ) are capable of fulfilling public media goals, and providing vital information to the public.

On balance, we think that it should be clearer in the bill that providing public media services is ANZPM’s primary purpose. Therefore, we recommend amending clause 11(1) to specify that ANZPM’s primary objective is to serve the public interest as a public media entity.

Submitters expressed concern that the bill as introduced could allow ANZPM to charge audiences for content that is currently provided free by either RNZ or TVNZ. We also heard that submitters wanted a large amount of the new entity’s content to be advertising-free, as RNZ is now.

We agree that ANZPM should provide most of its content free of charge to audiences. This should include when it is first provided, and when it is available more widely after premiering. However, we also think that the entity should be able to earn revenue from advertising.

We recommend amending clause 13(1)(e) to specify that ANZPM should provide content predominantly free of charge, including when it is first provided. We also recommend inserting clause 13(1)(ea) to make clear that some content would be provided free of charge and free of advertising, as is the case with RNZ now.

Clause 17 as introduced would require ANZPM to collaborate with the Māori media entities and other media entities. We are concerned that this clause would not set a clear enough expectation for ANZPM in relation to its collaboration with other media entities. Some submitters shared our concern, and suggested that clause 17 should specify how and with whom the entity should collaborate.

We believe that the requirement to collaborate should be clearer, but do not believe it should be overly prescriptive. We think that the purpose of the requirement to collaborate, and the expectation this clause places on ANZPM, should be clarified.

Therefore, we recommend removing clause 17 and inserting clause 14(1)(c). This change would make clear that collaboration would be for the purpose of helping to support the capability, capacity, and sustainability of the broader media sector. ANZPM’s duty to collaborate would apply only where it is consistent with ANZPM’s delivery of its charter and with section 51 of the Crown Entities Act.

It would also clarify that it would be the board’s responsibility to ensure that ANZPM is generally operating in accordance with this duty in delivering its functions.

We also recommend inserting new clause 15(2). New clause 15(2) would provide that the requirement to collaborate with the wider media sector is not a specific authorisation under Part 2 of the Commerce Act, prohibiting restrictive trade practices.

This would help to clarify that any collaboration should not involve anything that would breach the Commerce Act (such as allocating markets or enabling cartel-like behaviour).

We heard from submitters the view that the bill as introduced could distort the media market, and lead to a decrease in competition. Some submitters suggested that ANZPM’s ability to earn commercial revenue alongside its annual funding would mean that it could financially outperform private media entities. For example, ANZPM could use its additional commercial revenue to pay journalists more, or offer lower rates to advertising firms than private media entities.

We believe that ANZPM should work alongside the private media sector. ANZPM should be one part of a diverse media system, which offers New Zealanders a wide range of current affairs and entertainment options.

As noted above, we think that ANZPM should not be unduly constrained from earning commercial revenue in order to deliver public media content to all New Zealanders. However, we do not want ANZPM to act in a way that adversely affects competition in, or the plurality of, the media sector. We note that ANZPM is intended to be a public media entity, with the earning of commercial revenue secondary to its public media goals.

We recommend amending clause 14(1)(c)(ii) so that ANZPM’s board would be required to ensure that ANZPM takes account of existing services in the media sector. For example, the board would consider existing services when deciding whether to begin delivery of a new service, or whether to produce content in-house.

This new clause would help ensure that ANZPM considers the effects of any decisions that could have an adverse effect on the sustainability and capacity of the wider media sector. It would also not constrain its delivery of the charter, or its ability to earn commercial revenue to support that.

The bill as introduced does not clearly state whether the Commerce Act 1986 as a whole would apply to ANZPM’s operations. We are concerned that this ambiguity could affect the new entity’s ongoing operations.

The purpose of the Commerce Act is to promote healthy competition in markets for the benefit of consumers. We believe that, given ANZPM’s likely size and market power, it is important to be clear that the Commerce Act should apply to ANZPM’s ongoing operations.

Therefore, we recommend inserting new subpart 4, clause 15. New clause 15(1) specifies that the Commerce Act would apply to ANZPM’s ongoing operations.

The bill as introduced would require the House of Representatives to periodically review ANZPM and its performance of its charter. We note that legislating what a future House of Representatives must do binds future Parliaments to a set process. To bind a future Parliament means to restrict it from doing something, or to require it to do something. Binding future Parliaments is constitutionally unusual, and we consider that it should be avoided where possible.

We recommend amending clauses 22(1) and 22(4)(a) to require that the charter be periodically reviewed, but not to specify that this must be done by the House of Representatives.

We consider that this would avoid binding future Parliaments, while still setting an expectation that ANZPM’s charter will be regularly reviewed. For instance, the Minister or Manatū Taonga could commission an independent review of ANZPM’s charter and table the review in Parliament.

We have some concerns about how the transition from RNZ and TVNZ to ANZPM would be executed. In particular, we wish to make clear:

• when and how RNZ and TVNZ would be required to submit their final annual reports under the Public Finance Act 1989

• how employment matters, such as redundancy payments and collective employment agreements, would be addressed

• what would happen to the assets and liabilities of TVNZ and RNZ.

We discuss some suggested amendments below.

The bill as introduced would require ANZPM’s services that are similar or the same as those currently provided by RNZ to remain commercial-free if ANZPM continues to provide those services. We heard that the bill as introduced does not contain strong enough assurances that advertisement-free services would continue.

We agree with submitters that protections should be stronger to ensure RNZ’s existing commercial-free services remain commercial-free for as long as they are delivered. To do this, we recommend replacing clause 8 of Schedule 1.

New clause 8 would specify the services that RNZ currently provides that must remain commercial-free. This would also prevent existing RNZ services from carrying advertising for ANZPM’s commercial services.

These services include RNZ Concert, RNZ National, and RNZ Pacific in both English and Pacific languages. New clause 8 also specifies RNZ’s website URL and the existing RNZ app as services that must remain commercial-free for as long as they are provided by ANZPM.

We consider that TVNZ and RNZ should have to present final annual reports to the House in accordance with the Public Finance Act 1989 if they are subsumed into ANZPM. Financial scrutiny of publicly owned entities such as RNZ and TVNZ is crucial to maintaining public trust in them. However, the bill as introduced does not make clear under which provision of the Public Finance Act this should be done.

We recommend inserting new clause 10A in Schedule 1. This would make clear that the specified date for the end of the reporting period is 28 February 2023, for the purposes of reporting under the Public Finance Act. The end of the reporting period refers to when TVNZ and RNZ would cease to be subject to the requirement to provide an annual report.

Currently, operation and ownership of Freeview television in New Zealand is a joint venture between New Zealand’s public broadcasters and Warner Brothers. We explored how RNZ’s and TVNZ’s ownership of shares in Freeview Limited would be transferred to ANZPM.

Clause 4(1) of Schedule 1, as introduced, deals with the transfer of shares in companies owned by RNZ and TVNZ, including Freeview. Since Freeview is jointly owned by public and private companies, the clause needs to reflect that only RNZ and TVNZ’s shares would transfer.

Therefore, we recommend amending clause 4(1) of Schedule 1 to make clear that only shares owned by RNZ and TVNZ (a pre-commencement media company) would be transferred to ANZPM.

We believe that the bill as introduced is not specific enough about how TVNZ, RNZ, and the new ANZPM would be treated for tax purposes. We recommend inserting new clause 7(1) in Schedule 1 to specify that they would be treated as the same legal person for the purposes of all Inland Revenue Acts.

We also recommend inserting new clause 7(2) to make clear that the continuity provisions of the Income Tax Act 2007 would apply as if no change in ownership had occurred. This would ensure that no tax losses or imputation credits would be lost because of the establishment of ANZPM.

National members do not accept that the Economic Development, Science and Innovation Committee has been able to effectively scrutinise the financials behind the Aotearoa New Zealand Public Media Bill. As a result, we cannot in good conscience support the RNZ/TVNZ merger on the simple basis financials revealed to us indicate the cost to taxpayers will be upwards of $6+ billion over the next 30 years in addition to the upfront costs of $370 million revealed in Budget 2022.

The merger of RNZ and TVNZ into a “media monolith”, ANZPM, will have massive implications for the wider commercial media sector, for advertisers, for consumers of content, and for the public of New Zealand forced to pay for its existence.

Editorial independence has been somewhat strengthened by the select committee process; however, the lack of assurance over the culture of the new entity, over how the rule of law may be undermined by so many overriding clauses relating to workers’ rights, contract rights, and competition law is staggering. It is unacceptable that, in addition to the lack of access to the unredacted Strong Public Media Business Case, the Treasury’s Regulatory Impact Analysis team determined that this proposal is exempted from the requirement to provide a regulatory impact statement and that while the bill was still being considered by the select committee after submissions, new information came to light as part of the Half Year Economic and Fiscal Update 2022 that, “there is a risk that the actual return [of ANZPM Revenue] in funding to the Crown may need to be lower than assumed in the fiscal forecasts, to ensure ANZPM’s financial viability and ability to deliver on public media outcomes”. This means the ongoing funding to the entity will have to be increased and, further, ANZPM has been assessed as being required to pay tax, reducing its internal revenue-sourcing capacity. We also find it ludicrous the Strong Public Media Establishment Board never appeared before the committee considering the bill or entered any submission to the process, forcing members to rely on the advice by the officials of the Ministry for Culture and Heritage, Manatū Taonga, who are spearheading the merger and wider Government media sector plans.

National members took heart that the former Prime Minister asked Cabinet Ministers to re-think their portfolio plans ahead of an expected 2023 pre-election ministerial reshuffle. With the announcement of the Prime Minister’s resignation and the imminent appointment of a new Cabinet, National members hope this merger is not a part of the new Prime Minister’s agenda and that whoever holds the broadcasting portfolio will stop this unnecessary merger. As a recession is now expected in 2023 with the cost of living soaring for New Zealand households, this spending to create a merger that is not required should be at the top of the chopping block in the Government’s line of wasteful and unjustified policies that have no warranted basis for continuance while our country battles an economic storm.

The entire saga behind the Labour Government’s plans for the media sector has been nothing but embarrassing, with multiple Ministers, countless reviews and working groups and millions of dollars in wasted spending all behind a pall of a lack of openness and transparency. Simply lining the pockets of consultants. National members wonder how much better off RNZ might be if just the cost of the consultants involved with ANZPM went to fund their efforts to deliver on the RNZ Charter instead of this media circus.

In closing, National members turn to the words of Koi Tū: The Centre for Informed Futures at the University of Auckland, “…this bill, which will be a cornerstone of the sector for some decades, is so incomplete and raises so many issues that it would be unsafe to enact it in its present form”. National members agree with Koi Tū and National believes the only appropriate course of action is to cease this bill in its tracks and to allow RNZ and TVNZ to continue in their present form. Questions over the future of the media landscape need to go back to square one after years of incompetence and bungling by Labour as they have time and time again through their merger attempts and meddling in public media sparked the undermining of trust in public and wider media institutions at large.

National has pledged to reverse this merger of RNZ and TVNZ. It is not needed, it is not justified, it is unsafe, it is detrimental to the media landscape of New Zealand, and, above all, it is dangerous to our democracy.

This bill must be withdrawn by the Minister.