Fixing the BSA

Samira Taghavi writes at Law News:

When a statutory regulator begins to stretch its mandate beyond what Parliament intended, it is not a minor procedural concern – it is a constitutional matter.

The Broadcasting Standards Authority (BSA) has recently asserted that its jurisdiction may extend to “internet radio” and other forms of internet-delivered audio content. At first glance, this might appear to be an administrative or technological question. It is not. It is about the limits of state power, the certainty of the law and the preservation of freedom of expression in a democratic society.

The Law Association’s Public and Administrative Law Committee has written to Paul Goldsmith, the Minister for Media and Communications, because this development cuts to the heart of our constitutional framework: no regulator may enlarge its own powers through “interpretation” which defies the legislature’s textual exactitude.

Good to see the Law Association realise the importance of this.

In a 2019 paper and a more recent interlocutory decision, the authority suggested that it may have jurisdiction over “online broadcasting that resembles a traditional radio or television station”. That word – ‘resembles’ – is where the problem lies.

Resemblance is not a legal test. It is a subjective, functional concept untethered from statutory language. A regulator cannot expand its jurisdiction because new technologies look similar to old ones. Jurisdiction is not a matter of convenience or analogy; it is a matter of law.

The Broadcasting Act defines ‘broadcasting’ by reference to radio waves and broadcasting apparatus. Internet-based services do not meet that definition. They operate over an entirely different infrastructure – one that was never within the BSA’s statutory contemplation.

To interpret otherwise is to legislate by stealth.

If they truly believed that had jurisdiction, they would have been asking all Internet based video and audio services to be paying the broadcasting levy.

The cornerstone of administrative law is that state power must have a legal source. Public bodies cannot act unless authorised by statute and they cannot exceed the scope of that authorisation. This principle – sometimes described as the ultra vires doctrine – is not a mere procedural technicality. It is the constitutional mechanism that keeps power accountable.

This is why the Minister should have intervened. It is not an operational matter. It is a constitutional matter.

Legal certainty demands that the law be clear, knowable and predictable. Citizens and content providers should not have to guess whether their speech falls under a regulator’s jurisdiction. Nor should they discover, after the fact, that the scope of regulation has expanded through interpretation rather than legislation.

This is key. It is totally unacceptable that video and audio providers on the Internet may be subject to a regime without their knowledge.

To assist the government in restoring certainty and clarity, the Public and Administrative Law Committee has prepared two short draft bills for officials to consider.

Broadcasting Amendment (Abolition of the BSA) Bill

This bill proposes abolishing the Broadcasting Standards Authority in its entirety, with appropriate transitional provisions

The rationale is simple: the BSA model is an anachronism. The media landscape it was designed for – centralised, largely state-owned and frequency-based – no longer exists.

Most major broadcasters and content platforms already adhere voluntarily to the jurisdiction of the New Zealand Media Council, which provides a robust, independent and adaptive self-regulatory framework. The BSA, by contrast, duplicates oversight in a shrinking sector while being ill-suited to the realities of online communication.

An excellent bill. Maybe a backbench MP could submit it to the ballot.

UPDATE: As it happens, since I wrote this ACT MP Laura McClure has done so. Excellent.