Chapter 7
Ethical journalism – a new approach to media standards
in the digital age

Legislative implications

7.170The question is whether statute is required to bring about the reforms that we recommend. Our preferred option for an independent voluntary news standards body is one where the role of statute would be limited to recognising the new framework, without any degree of prescription on the creation or operation of the standards body whatsoever.

7.171The news media strenuously resist the intrusion and imposition of statute into their affairs. Even the moderate statutory underpinning recommended by the Leveson Report534  sparked opposition. A concern is that if there is any statutory basis to a system of media oversight, politicians could find it too easy to “ratchet it up a little” later.535  We do not recommend a statutory body, nor any new statutory powers. In fact, we recommend that the role of statute be reduced with the removal of the jurisdiction of the statutory-based BSA in relation to news standards. But to achieve the necessary operating environment for a comprehensive, independent voluntary regime, based on incentives, rather than statutory compulsion, two consequential statutory amendments would be required.

7.172The first is that it will be necessary to change the jurisdiction of the BSA by largely removing its jurisdiction over news and current affairs. The BSA is a statutory body and its jurisdiction can only be changed by statute. We anticipate that that would involve at least one additional consequential amendment: New Zealand on Air funding would be subject to a condition that the standards in the NMSA code would be observed, instead of, as now, the statutory standards in the Broadcasting Act.

7.173The second primary statutory amendment would contain a list of the existing statutory provisions conferring media privileges and exemptions and amend each one to provide that the news media on which the privileges are conferred are those media which subscribe to a code of practice and are subject to the NMSA. This definitional amendment would mean that access to the statutory exemptions and privileges available to the media would be conditional on accountability to a code of ethics and a complaints process. But this does not mean that the NMSA will therefore be a statutory body. The NMSA will not be created by statute, neither will its processes or standards be prescribed by statute. It is simply that its existence will be recognised by statute.

7.174That happens now. The Press Council is not a statutory body, but it is recognised by the Criminal Procedure Act 2011 in which it is provided that the journalists who have court attendance privileges under that Act include those from organisations which belong to the Press Council.536  Other non-statutory entities whose existence is recognised by statute include the ASA537  and Local Government New Zealand.538  This is all we mean by “recognition”.
7.175Beyond “recognition” there are two possible types of “statutory underpinning” but we do not see need for either of them. First, it would be possible to have a system whereby statute simply mandated the creation of a standards body but left it entirely to the industry and others to establish it in their own way. That indeed is the way the profession of Chartered Accountancy is regulated in New Zealand.539  Another sort of “statutory underpinning” is contained in the Leveson Report: a list of the criteria the recommended media standards body should meet, and the creation of a recognition body to ensure that it does.540
7.176We would not wish to go so far in New Zealand. If membership of the standards body is to be voluntary there is no need in our view for any greater statutory underpinning. We would prefer that the opportunity should be given to set up the new body, as the Press Council and the Advertising Standards Authority were set up, independently of any Act of Parliament. If such a system does not work after a reasonable trial it would be necessary to seek another alternative. The Australian Convergence Review has reached much the same conclusion.541
534Leveson Report, above n 447, Executive Summary at recommendations 27 – 33.
535Ward, above n 449, at [2.12] citing James Harding, editor of The Times.
536Criminal Procedure Act 2011, s 198(2)(a).
537Broadcasting Act 1989, ss 8(2), 21(3).
538Local Government Act 2002, ss 6(4), 259A(6).
539New Zealand Institute of Chartered Accountants Act 1996.
540Leveson Report, above n 447, Executive Summary at recommendations 27– 33.
541Convergence Review, above n 446, at 52 – 53.