SUBMISSION TO THE JUSTICE AND ELECTORAL COMMITTEE ELECTION 2014 REVIEW 31 MARCH 2015

Transcription

1 SUBMISSION TO THE JUSTICE AND ELECTORAL COMMITTEE ELECTION 2014 REVIEW 31 MARCH 2015

2 To: Committee Secretariat Justice and Electoral Committee Parliament Buildings Wellington This submission is made on behalf of Television New Zealand Limited, in response to the Justice and Electoral Committee s role to examine the law and administrative procedures for the conduct of Parliamentary elections in light of the 2014 general election. TVNZ would like to make an oral submission before the Committee, if that option was available. Contact Details: Brent McAnulty Head of Legal and Corporate Affairs Television New Zealand Limited Ph: M: E: brent.mcanulty@tvnz.co.nz

3 INTRODUCTION 1. Television New Zealand Limited (TVNZ) thanks the Justice and Electoral Select Committee (the Committee) for the opportunity to make a submission in respect of the Committee s inquiry into the 2014 General Election. TVNZ welcomes the opportunity to discuss these submissions with the Committee, if the Committee pleases. 2. This submission will focus on the following aspects of Election 2014: 2.1. TVNZ s obligation to carry opening and closing addresses; 2.2. The overlap in jurisdiction between the Electoral Commission and the Broadcasting Standards Authority; and 2.3. Election Day coverage and the growing impact of social media, amidst record numbers of voters casting their vote prior to Election Day. A. Opening and Closing Addresses 3. Part 6 of the Broadcasting Act 1989 (the Act) governs programmes relating to Parliamentary elections. Most relevantly, sections 71 and 77A impose obligations on both TVNZ and Radio New Zealand (RNZ) to broadcast the opening and closing addresses of parties contesting the election. 4. These obligations were introduced in 1989, which was: 4.1. prior to the introduction of MMP; 4.2. at a time when voters had a far more restricted menu of information sources about the policies of those seeking election; 4.3. at a time when TVNZ was the sole television broadcaster; and 4.4. at a time when TVNZ was a public service channel without a statutory requirement to behave like a commercial business. 5. The mandatory obligations are now out of date and TVNZ requests that the Committee take the opportunity presented by this inquiry to review these provisions and recommend reform. 6. In short, TVNZ submits that the Part 6 obligations relating to opening and closing addresses should no longer apply to TVNZ, and that parliament TV would be a more appropriate channel to screen opening and closing addresses. 7. Alternatively, in the event that TVNZ continues to be bound by Part 6, TVNZ submits that other commercial broadcasters should be included within the Part 6 obligations to create a level playing field. Additionally, TVNZ submits that the time of broadcast should be at the reasonable discretion of the broadcaster, rather than within the narrow window set out in section 77A of the Act.

4 Statutory background 8. Under section 71 of the Act TVNZ must broadcast opening and closing addresses free of charge. When this provision was originally enacted in 1989 it was expressed as an: obligation to permit political parties to broadcast election programmes free of charge 1 9. The purpose of this provision was to ensure that voters would have free and easy access to information about political manifestos. It applied to TVNZ and RNZ only, since at the time this Act was passed both were public service broadcasters. The Act established a system whereby under section 71A, both broadcasters were required to inform the Electoral Commission how much time they would supply for these statements to be broadcast. The Electoral Commission would then determine which parties qualified for time and how much time each party would be allocated. The Court of Appeal has subsequently ruled that each qualifying political party must be given time, regardless of the size of the window that TVNZ offers Under section 77A, TVNZ is required to air the opening and closing addresses between 7pm and 9pm, with restrictions on commercial placement in respect of opening addresses and a complete prohibition on advertising during closing addresses. This is within prime time the period of the day during which viewing is highest, and advertising revenue most lucrative. Changes to TVNZ s statutory functions 11. When the Part 6 obligations were drafted in 1989 TVNZ was a different organisation. At that time, for instance, every household with a television paid a $110 public broadcasting fee, which partly funded TVNZ. Until 1988 TVNZ was managed alongside RNZ and the New Zealand Symphony Orchestra as part of the Broadcasting Corporation of New Zealand (BCNZ). 12. In 2003 the then Labour Government transformed TVNZ into a crown entity with the dual purpose of maintaining commercial performance and implementing a public television Charter. This change marked a significant transition from national broadcaster to a government-owned but commercially-operated media company. 13. In 2011, the Television New Zealand Amendment Act 2011 came into force. Of relevance for this submission, it amended section 3 (Purpose of Act), and section 12 (Functions of TVNZ). 14. Those amendments were designed to simplify and clarify TVNZ s functions. They eliminated the requirement for TVNZ to operate according to the Charter, and established that its proper functions are: to be a successful national television and digital media company providing a range of content and services on a choice of delivery platforms and maintaining its commercial performance. 3 1 Broadcasting Act 1989, section 71 (as enacted, 1 July 1989). 2 The Alliance Party v The Electoral Commission and ors, CA639/2008, [2010] NZCA 4. 3 Television New Zealand Act 2003, section 12(1).

5 15. These latest amendments complete TVNZ s transformation and recognise that TVNZ is now subject to considerable competitive pressure from other broadcasters, both on screen and online. Changes to the information sources 16. At the time at which the obligations were imposed, television was the key method of communication with the voting community. The rise of the internet and online and social media has diluted this considerably. Parties have many more channels of communication of their political manifestos. Obligations in practice 17. For Election 2014, TVNZ allocated 60 minutes for the opening addresses and 60 minutes for closing addresses. 18. The Part 6 obligations impose a cost on TVNZ because they reduce the opportunity or deprive TVNZ of the right to broadcast commercials during prime time viewing. In addition, audience numbers show a sharp decline during the broadcasts. The pattern of audience behaviour is such that viewers who turn off during prime time generally do not turn back on later in the evening. This impacts on the desirability of commercial placements throughout the three evenings and therefore on revenue. 19. For Election 2014, the opening addresses on Saturday 23rd August rated 38% lower than the average of the six previous Saturday evenings. 4 The closing addresses on Friday 19th September rated 25% less than the equivalent Friday average for This placed TVNZ at a serious commercial disadvantage to its competitors. 4 Opening Address comparison Previous 6 week average pm, 23rd August Audience drop off Average Audience (In 000s) Ratings % Source: Nielsen TAM, Consolidated (Includes TV One Plus 1 ratings) Previous 6 weeks 12 th Jul - 16 th Aug, Saturdays only 5 Closing Address comparison Previous 6 week average pm, 19th September Audience drop off Average Audience (In 000s) Ratings % Source: Nielsen TAM, Consolidated (Includes TV One Plus 1 ratings) Previous 6 weeks 8 th Aug 12 th Sep, Fridays only

6 20. This drop in audience does not equate to apathy towards the Election itself. The figures should be read against very high viewership of the three TVNZ leaders debates, the strong participation in TVNZ s Vote Compass service (with over 330,000 registered users) and strong Election night viewership. In other words, the Election itself was compelling viewing for many; however the opening and closing addresses were a turn-off for audiences. 21. We believe audiences are increasingly disinterested in the opening and closing statements for the following reasons: Political advertising has become much more sophisticated since Political parties focus their attention on their own advertising campaigns rather than on these statements; Political parties now use the internet and social marketing tools to communicate directly with voters; Voters have many more sources of information about parties manifestos including the parties own websites, online news sites and aggregated news sites; and The proliferation of parties has made the political landscape more crowded and therefore more off-putting to some viewers. 22. The commercial disadvantage resulting from the Part 6 obligations was acceptable when TVNZ was either a fully-fledged public broadcast operator or a commercial operator with public Charter obligations. But in its current form, as a wholly commercial operator, the Part 6 obligations are no longer appropriate, and do not reflect a level playing field. 23. It is relevant that RNZ, which is also required to provide free broadcast time for opening and closing statements under Part 6, is still defined as a public radio company under section 7 of the Radio New Zealand Act Under section 7 RNZ is bound to implement a public radio charter, which includes taking into account audience views on the quality and quantity of programming but does not include any commercial considerations. Most importantly, RNZ remains fully funded by the government. 24. TVNZ and RNZ may once have been stable-mates inside the BCNZ, but they are now chalk and cheese. It makes no sense that they should face the same obligations under Part 6. No other commercial broadcaster is so bound. 25. Under TVNZ s current statutory remit, the appropriate course for TVNZ to take is to minimise its allocation of time for opening and closing addresses and the adverse commercial impact. That is the sensible commercial approach to take, in fulfilment of its statutory responsibilities to be a successful company and to maintain its commercial performance. Proposed reforms 26. TVNZ considers that a substantial modernisation is called for in relation to opening and closing addresses, and this can be achieved in a simple, non-partisan amendment.

7 27. Consequently TVNZ submits there is a conflict between the Act and the Television New Zealand Act 2003, and seeks the following: Amending Part 6 of the Act to remove TVNZ s obligations to provide broadcast time for opening and closing statements; or alternatively Amending Part 6 of the Act to extend the obligations on TVNZ to all commercial broadcasters. 28. These allocations no longer provide the public information function that they once did. They are also inconsistent with TVNZ s statutory functions. It is no longer appropriate for a commercial entity such as TVNZ to be required to provide coverage free of charge when such coverage affects its revenue and when its competitors face no such obligation. 29. TVNZ submits, as a further alternative, that rather than carry the opening and closing addresses itself, that the opening and closing addresses could be broadcast on Parliament TV as it: is available to the entire country on the Freeview platform (Channel 22), the SKY network (Channel 86), and the Igloo and Vodafone networks; is a non-commercial channel; does not have live content whilst the House is in recess, and instead broadcasts a static screen advising that the House is not in session; is a natural home for party political broadcasts as a channel dedicated to coverage of the New Zealand Parliament. Application by the Conservative Party 30. In addition, the time, the order of play and the funding allocated by the Electoral Commission for the opening and closing addresses for Election 2014 was criticised by the Conservative Party, who sought judicial review on the matter. The application sought a ruling on the Electoral Commission s role in allocating time, order and funding across the qualifying parties. 31. Shortly before the matter was due to be heard by the High Court, the proceeding was withdrawn by the Conservative Party following the Electoral Commission s voluntary reallocation of funding and time. However the issue as to the Electoral Commission s role was not determined and could remain an issue at the next election. 32. TVNZ had an interest in the proceeding as it could see a potential outcome where it ended up being the arbiter of allocating time across parties, or having to determine the order in which the parties addresses would be broadcast. TVNZ did not want to be put in that position and believes that the Electoral Commission is better placed to fulfil this role. External legal advice was sought and submissions were prepared on that point, however as the matter was withdrawn TVNZ incurred legal costs, without that point being determined.

8 B. Overlap between Broadcasting Standards Authority and Electoral Commission 33. The Broadcasting Standards Authority (BSA) publishes an Election Programmes Code of Broadcasting Practice which governs the broadcast of election programmes, that is, a programme which: encourages or persuades, or appears to encourage or persuade voters to vote, or not to vote, for a political party or the election of any person at an election; or advocates support for, or opposes, a candidate or political party; or notifies meetings held or to be held in connection with an election The Electoral Commission is an independent Crown entity responsible for the administration of parliamentary elections and referenda. 35. There is considerable overlap. This was accentuated in 2011 by the contrasting decisions of each body in respect of the Prime Minister s Hour radio broadcast on Radio Live. The BSA held that the programme did not meet the definition of an election programme. 36. The Electoral Commission however said of the same programme: In the Commission's view it is unrealistic for a programme hosted by the Prime Minister or any other prominent politician to be 'election-free', irrespective of its content, when the host is in the midst of contesting a parliamentary election as party leader and candidate. 7 It found that the programme was an election programme and referred the matter to the Police. 37. The definition of an election programme is unclear, made even more uncertain by the differing interpretations applied to it by the Electoral Commission and the Broadcasting Standards Authority. The media is left in a position where it simply does not know the correct legal boundaries, yet faces the prospect of criminal liability if it is found to have crossed the line. It is submitted that a much clearer test is required so that media knows where it stands. TVNZ considers that the BSA s interpretation is to be preferred, as it is more consistent with the right of freedom of expression, which should be strongly protected in relation to election matters. 38. TVNZ submits that the uncertainty as to jurisdiction is unhelpful to media, and oversight should be allocated to one body in time for the next general election. C. Election Day Coverage 39. As a responsible member of the media, TVNZ understands and respects the restrictions on comment on political matters on Election Day (until such time as polling booths have closed) as set out in the Electoral Act BSA Election Programmes Code of Broadcasting Practice and Broadcasting Act 1989, section 69 7 Electoral Commission media release dated 8 February 2012

9 40. However as with all mainstream media organisations, TVNZ also provides platforms which allow viewers and correspondents to comment on a wide variety of subjects themselves. The ubiquity of social media makes this interaction a vital part of TVNZ s strategy and success. This means that operators such as TVNZ are not only responsible for their own output, but also liable (to a lesser degree) for the increasing numbers of comments on TVNZ s website and social networking pages. 41. While the rationale for restricting comment on Election Day is appreciated, it should be noted that 717,579 people voted in advance of Election Day 2014, which is almost 30% of voters who cast a vote in Election This represents a 114% increase from Election Those people voted with the full exposure to election coverage and campaigning. The possibility of influence is therefore diminishing. 42. Election Day restrictions are also vague and can be subject to differing interpretations. Reference to Police of alleged breach is unnecessary and inappropriate. Again, this is an area that would benefit from review as to whether the restrictions are out of date in the digital age. 43. TVNZ submits that the Committee should carefully consider the growing impact of social media and the issues that this brings. It is submitted that some guidelines for operators of social media platforms or web pages would be useful in respect of future elections, particularly with respect to the monitoring or prohibition of comments. 8 Source: Electoral Commission website