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Broadcasting (New Zealand on Air and Te Mangai Paho Reporting Requirements) Amendment Bill (Consistent) (Section 14) [2018] NZBORARp 73 (29 August 2018)
Last Updated: 7 January 2019
29 August 2018
LEGAL ADVICE
LPA 01 01 23
Hon David Parker, Attorney-General
Consistency with the New Zealand Bill of Rights Act 1990: Broadcasting (New
Zealand on Air and Te Māngai Pāho Reporting
Requirements) Amendment
Bill
Purpose
- We
have considered whether the Broadcasting (New Zealand on Air and Te Māngai
Pāho Reporting Requirements) Amendment Bill
(‘the Bill’), a
Member’s Bill in the name of Melissa Lee MP, is consistent with the rights
and freedoms affirmed
in the New Zealand Bill of Rights Act 1990 (‘the
Bill of Rights Act’).
- We
have concluded that the Bill appears to be consistent with the rights and
freedoms affirmed in the Bill of Rights Act. In reaching
that conclusion, we
have considered the consistency of the Bill with s 14 (freedom of expression).
Our analysis is set out below.
The Bill
- The
purpose of the Bill is to require New Zealand on Air (the Broadcasting
Commission) and Te Māngai Pāho (the Māori
Broadcast Funding
Agency) to publish quarterly reports and make them public. It amends the
Broadcasting Act 1989 (‘the principal
Act’).
- New
Zealand on Air is an autonomous Crown entity responsible for the funding of
public- good broadcasting content across television,
radio and new media
platforms. Te Māngai Pāho is a Crown entity responsible for promoting
the Māori language by funding
Māori- language programming on
television, radio and new media platforms.
- The
Bill provides that the agencies must publish reporting that includes television
and radio rating information, online views or
clicks, and any other view
tracking data; along with the breakdown of associated costs for the funded
programming. The Bill is intended
to ensure that television shows, visual online
media content, and non-music-based radio programming are reported on and
tracked,
to safeguard public funding of appropriate content and encourage better
funding analysis. It aims to ensure that more data is available
to the relevant
agencies before funding decisions are made (including whether projects are
confirmed or renewed).
Consistency of the Bill with the Bill of Rights Act
Section 14 – Freedom of Expression
- Section
14 of the Bill of Rights Act affirms that everyone has the right to freedom of
expression, including the freedom to seek,
receive, and impart information and
opinions of any kind in any form. The right has been interpreted as including
the right not to
be compelled to say certain things or to provide certain
information.1
- Clause
4 of the Bill amends the Broadcasting Act 1989 and requires the relevant
agencies to perform quarterly public reporting. This
provision may be seen to
limit s 14 of the Bill of Rights Act as it compels the provision of certain
information.
- A
provision found to limit a particular right or freedom may nevertheless be
consistent with the Bill of Rights Act if it can be considered
reasonably
justified in terms of s 5 of that Act, which asks if the objective of the
provision is sufficiently important to justify
limiting freedom of expression.
If this is the case, the inquiry is then whether the limitation is rationally
connected and proportionate
to that objective and the limitation is no more than
reasonably necessary to achieve that objective.2
- We
consider the limitations in the Bill are minimal and justified taking into
account the objectives of the provisions. These include
promoting transparency
and accountability to the public for the spending of public funds related to
public broadcasting, and the
necessity of information-gathering in a regulatory
context. Further, it is noted that, in this case, these limitations apply to
Crown
entities, rather than individuals.
- For
these reasons, we conclude that any limits to the freedom of expression imposed
by the Bill are justified under s 5 of the Bill
of Rights
Act.
Conclusion
- We
have concluded that the Bill appears to be consistent with the rights and
freedoms affirmed in the Bill of rights Act.
Jeff Orr
Chief Legal Counsel Office of Legal Counsel
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