David Harvey: The Demise of the Broadcasting Standards Authority?

An announcement. But will there be action?

On 6 May 2026 the Minister for Broadcasting, Mr. Paul Goldsmith, announced that the Broadcasting Standards Authority would be disestablished.

A process had been put in place to wind down the BSA and investigate self-regulation options. There is, of course, a little more to it than that. The BSA was created by the Broadcasting Act 1989 and it is referred to in a number of statutes. There will be legislative work involved as well.

Mr. Goldsmith said legislation to repeal provisions in law relating to the BSA would be drafted in the coming months. The BSA would continue in its role until that legislation was passed.

Mr. Goldsmith pointed to the New Zealand Media Council as a self-regulation mechanism, adding he expected the Media Council would become the “primary regulator for journalism”.

The Media Council is funded by major media organisations to rule on fairness, accuracy and decency. Unlike the BSA, it holds no legal powers.

The title to this article ends with a question mark. Although the demise of the BSA has been announced there is a journey to be travelled before that announcement is given effect. And there are only a few months left before Parliament rises for an election. In the meantime, of course, there is the little matter of the Budget.

The response by the Labour Party was entirely predictable

Labour leader Chris Hipkins said the move was “risky”.

“At a time when confidence in the media is being severely tested, removing one backstop without replacing it with something that’s robust and well thought through is a really, really risky thing for the government to be doing.”

He said leaving it up to self-regulation was not the answer either.

So right from the outset Hipkins envisages the replacement of the BSA with another regulator (We will get to that shortly)

Then comes a comment that demonstrates that Mr Hipkins completely misunderstands what the BSA was about. With his usual ability to demonstrate his own infantile understanding of its purpose he inaccurately considers it as being a consumer protection body.

“Yes, regulation needs to be updated, but just marching headlong into abolishing basically a consumer protection without any clear sense of what’s going to replace it, I think, is irresponsible.”

Consumer protection, Mr. Hipkins? Simplistic in the extreme.

Allow me to explain what you fail to understand – and I start with a lesson in history.

The BSA - A New Era for Broadcasting?

When the New Zealand Parliament passed the Broadcasting Act 1989, it was doing more than tidying up old legislation. It was reshaping the entire architecture of public broadcasting in a country transitioning from a highly regulated, state-dominated media landscape into the deregulated, commercial era of the 1990s.

Associated with the Broadcasting Act and enacted at the same time was the Radiocommunications Act. The Radiocommunications Act set up the regime for controlling and allocating spectrum – the limited amount of available broadcasting frequencies – the means of delivery. The Broadcasting Act dealt with the content aspect of broadcasting. The two pieces of legislation were linked.

The repeal of the Broadcasting Act 1976 dismantled much of the direct state control over broadcasting content that had characterised the earlier period. In its place, it established two new Crown entities: NZ On Air (formally the Broadcasting Commission), tasked with funding public broadcasting and independent local production, and the Broadcasting Standards Authority charged with developing and upholding standards across radio, free-to-air television, and pay television.

The BSA formally came into being as an independent Crown entity. The word “independent” was deliberate and significant. Although the BSA’s board was appointed by the Governor-General on the advice of the Minister of Broadcasting — meaning Cabinet held practical appointing power — the organisation was designed to operate at arm’s length from government.

Ministers could provide high-level guidance but could not directly influence its decisions on complaints or standards. This structural independence was meant to address a tension that runs through all media regulation: how does a democracy set standards for broadcast content without government simply controlling what can be said?

The 1989 Act also had a broader ambition. It sought to create a coherent framework for an industry that had grown piecemeal, and to embed a model of regulation of broadcasters operating within a statutory framework.

The BSA’s early mission statement captured this balance: to establish and maintain acceptable standards of broadcasting in New Zealand radio and television broadcasts, within the context of current social values, research and the principle of self-regulation in a changing and deregulated broadcasting industry.

Maintaining standards was what it was about.

What the BSA Did

The Authority’s work fell across four broad functions.

Complaints determination was the most visible. When a viewer or listener believed a broadcast had breached standards, they were required first to complain directly to the broadcaster. If dissatisfied with the response — or if they received no response within twenty working days — they could refer the matter to the BSA.

The Authority could uphold or decline to uphold the complaint, or in some cases decline to determine it at all. Where a breach was found, the BSA had real legal teeth: it could order a broadcaster to air a corrective statement, award costs to the Crown or the complainant, suspend advertising during offending programmes, or — in the most serious cases — prohibit broadcasts for up to twenty-four hours.

It could also impose fines of up to $5,000. Decisions could be appealed to the High Court within a month of their release.

Standards development was the less glamorous but equally important side of the work. The BSA was responsible for developing, interpreting, and updating the codes that governed what broadcasters could and could not do. These were not static rules handed down once and left to gather dust. They were living documents, subject to periodic review as community standards shifted, technology evolved, and the media landscape changed.

Research was a statutory obligation. The Broadcasting Act required the BSA to understand what New Zealanders actually thought about broadcasting content — not merely what a small group of complainants objected to, but the broader public mood. The Authority commissioned research on issues including television violence, alcohol advertising, offensive language, and public attitudes to a wide range of content categories.

Education and engagement rounded out the BSA’s role. It published guidance for broadcasters, provided information to the public about the complaints process, and sought to help the industry understand and apply the standards framework through its newsletter and other communications.

The Standards Themselves

The Broadcasting Standards Codebook, updated most recently in July 2022, contained eight standards applicable to all broadcasters and all broadcasts except election programming.

The first two standards — children’s interests and good taste and decency — addressed the protection of younger audiences and the maintenance of basic community norms around what was acceptable to broadcast at different times of day. The third, law and order, required broadcasters not to encourage viewers to break the law or to glamourize criminal behaviour.

Standard four addressed discrimination and denigration, requiring that broadcast content not encourage discrimination against or denigration of any section of the community on the grounds of sex, sexual orientation, race, age, disability, occupational status, religion, culture, or political belief.

Balance (standard five) was particularly significant in a democracy. It required that when controversial issues of public importance were discussed in news, current affairs, or factual programmes, broadcasters make reasonable efforts to present significant viewpoints — either in the same broadcast or in other broadcasts during the period of current interest — unless the audience could reasonably be expected already to be aware of those viewpoints from other media coverage.

Accuracy (standard six) required broadcasters to make reasonable efforts to ensure that news, current affairs, and factual content was accurate on all material points of fact, did not materially mislead the audience, and that material errors were corrected within a reasonable period after the broadcaster was put on notice.

Privacy (standard seven) required broadcasters to maintain standards consistent with the privacy of the individual — a standard that intersected with, though was distinct from, the general law on privacy.

Fairness (standard eight) required that broadcasters deal fairly with any individual or organisation taking part in or referred to in a broadcast.

The codebook also contained provisions specific to election programming under a separate code, and the BSA maintained detailed guidelines and commentary on how these standards applied in practice.

The Question of State Control

The question of whether the BSA represented state monitoring of broadcast content — or even a form of state censorship — ran through its entire existence and became explosive at its end.

The case for the BSA as a legitimate, arm’s-length regulatory body rather than a state censor rests on several points. Its independence from day-to-day government direction was structural and legally protected.

Broadcasters were not subject to prior restraint. The BSA was reactive and acted only after complaints were made and after broadcasters had had a first opportunity to respond.

The standards it enforced were not ideological but technical — accuracy, fairness, balance, privacy, decency in context. The complaint that was upheld tended to be one where a specific individual had been treated unfairly, or a factual claim had been demonstrably wrong, not one where the BSA had simply disapproved of a political opinion.

The case against is less about what the BSA did in practice and more about what it represented structurally. The board was ultimately appointed on the advice of ministers. The standards — however neutrally drafted — were interpreted by a government-created body. The requirement for “balance” on “controversial issues of public importance” placed a statutory body in the position of judging which issues were sufficiently controversial and whether a broadcaster had met its obligations.

Even where applied reasonably, that power creates a gravitational pull toward a certain kind of caution among broadcasters, a chilling effect that operates without any specific complaint ever being made.

By the time it reached the end of its existence, the BSA was handling fewer than one hundred formal complaints a year — the lowest figure since 1990-91. It operated with eight staff and an annual budget of roughly $1.67 million. Whatever power it had once wielded, it had become a relatively modest operation.

The Digital Problem – Tracking the Issue

For much of its later life, the BSA’s central dilemma was jurisdictional. The Broadcasting Act 1989 defined its reach in terms of “broadcasting” — the transmission of programmes by radio waves or other means of telecommunication for reception by the public. That definition had been written in an era of three television channels and no internet.

As streaming services, podcasts, and online broadcasters proliferated, the BSA occupied an increasingly anomalous position: a regulator with meaningful jurisdiction over a shrinking portion of what New Zealanders actually watched and listened to.

The BSA had acknowledged for more than fifteen years that the Broadcasting Act was no longer fit for purpose. But the issue had been identified in 2013.

The 2013 Law Commission Wake-Up Call

The fault line was formally identified in 2013, when the Law Commission published its report The News Media Meets ‘New Media’. The Commission documented a clear “regulatory gap” for online-only services: internet-based radio, independent webcasters, and digital-native publications operated outside all existing regulatory frameworks. The Law Commission proposed a new unified structure to replace the BSA and the Press Council with a regime better suited to the convergent media environment.

The media industry responded to this proposal, as it had responded to the 1972 proposals to regulate the press, by creating a new self-regulatory body before a statutory one could be imposed.

The Online Media Standards Authority (OMSA) was established to cover the gap the Law Commission had identified. OMSA had a short existence — it was absorbed into the newly renamed New Zealand Media Council, which took on complaints about newspapers, magazines, and digital publishers. But traditional radio and television broadcasting remained under the BSA.

The Law Commission’s report had made one thing explicit: internet-based services were not subject to BSA jurisdiction. That was the gap it had identified. That shared understanding — accepted by the BSA itself, by successive governments, and by independent analysis — would persist for over a decade.

The Department of Internal Affairs’ later Safer Online Services and Web Platforms discussion paper and the Ministry for Culture and Heritage’s Media Reform Discussion Document of February 2025 both proceeded on the same basis: the BSA’s remit was limited to traditional broadcasting. Internet-only services were outside it.

But they were all of them deceived. The BSA itself had another view.

The 2019 Paper: The First Jurisdictional Move

In November 2019, the BSA issued an internal policy paper titled Application of the Broadcasting Act to Internet Content. It was prepared, according to the BSA, to enable content providers to understand the Authority’s approach to internet content and to consult on how to develop appropriate frameworks.

The 2019 paper reaffirmed the established position in its opening: the BSA had jurisdiction over simulcasts (content transmitted on air and online simultaneously) and over on-demand content that had previously been broadcast. It then went further.

Drawing on the Interpretation Act’s principle that legislation applies to circumstances as they arise, and on a purposive reading of the Broadcasting Act, the paper suggested the BSA might have jurisdiction over “online broadcasting that resembles a traditional radio or television station.” This is an interpretative position from which the BSA has not resiled.

That word — resembles — was identified by critics as the paper’s central weakness. 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 a matter of law, not analogy.

The paper also contained a significant concession that would later be used against the BSA. It explicitly stated that the BSA was not seeking to levy online providers — the BSA’s funding mechanism required broadcasters to pay levies — and described its 2019/2020 position as “provisional and subject to legislative reform.” Having spent years calling on Parliament to update the Act, the BSA was acknowledging that the existing legislation might not, in fact, support the jurisdictional expansion it was contemplating.

This tension — between the claim that jurisdiction over online content was always clear under existing law, and the simultaneous acknowledgment that the position was provisional and that legislative reform was needed — would prove fatal to the BSA’s legal credibility when the issue became live.

In 2020, the Authority paused its jurisdiction review. It cited the uncertainty and indicated it would await legislative guidance. The pause was significant: it was effectively an institutional admission that the existing statutory framework was insufficient to resolve the question. Parliament, not the BSA, needed to act.

Six Years of Inaction

Between 2020 and 2025, nothing happened. Successive governments received advice about the regulatory gap.

The DIA conducted its Safer Online Services review. The Ministry for Culture and Heritage produced its media reform discussion document. The BSA itself, as its chief executive Stacey Wood would later acknowledge, spent more than fifteen years “calling with increasing urgency for Parliament to update the Act.” Parliamentary acknowledgment of the problem was consistent. Parliamentary action was absent.

Meanwhile, internet-only broadcasters continued to operate freely. The Platform was launched by veteran broadcaster Sean Plunket in May 2022. It offered live talkback, news commentary, and interview content — programming that was, in format and content, indistinguishable from what a traditional radio station might produce.

It streamed online, carried advertising, and built a substantial audience. Under any conventional understanding of the regulatory framework, it was outside BSA jurisdiction. It had never paid a BSA levy. The BSA had never claimed otherwise.

The Trigger: Tikanga as “Mumbo Jumbo”

On 22 July 2025, Sean Plunket described tikanga Māori — Māori customary protocols and beliefs — as “mumbo jumbo” on The Platform’s live talkback programme.

On 31 July, a listener named Richard Fanselow complained to The Platform directly. Plunket’s response was characteristically blunt: “You plonker. We aren’t subject to the Broadcasting Standards Authority.”

Fanselow took the matter to the BSA, asking whether Plunket was right about jurisdiction. This was the procedural trigger the BSA had been waiting for — or, as critics would frame it, the moment the BSA walked into an ambush of its own making.

The BSA issued what it called a “provisional interlocutory decision.” Rather than simply receiving the complaint and asking for submissions from all parties before deciding the jurisdictional question, the Authority issued a preliminary ruling asserting that it did have jurisdiction. This was probably its first error – that of the appearance of predetermination.

It concluded that The Platform’s live talkback programme met the Act’s definition of broadcasting because it constituted a “programme” within the broad statutory definition; it was transmitted “by other means of telecommunication” (the internet); and it was “for reception by the public” using a “broadcasting receiving apparatus” — which the BSA extended to include computers and mobile devices.

The reasoning tracked almost exactly the arguments set out in the 2019 paper. Critics noted this was not coincidental: the BSA’s 2019 position paper had, in effect, pre-announced the conclusion the Authority would reach if this jurisdictional question ever came before it. The decision was a finalisation of a position the BSA had staked out years earlier, not a fresh application of open-minded statutory analysis.

Was the Outcome Pre-Determined?

The allegation of predetermination — that the BSA had already made up its mind before it heard from The Platform — deserves careful examination. It operates on two levels.

Procedurally, the concern is real. The BSA issued its “provisional interlocutory decision” before calling for substantive submissions from The Platform or other interested parties on the jurisdictional question.

An institution determining its own jurisdiction — and announcing a preliminary conclusion before hearing full argument — creates exactly the optics of a judge deciding in its own cause. As one legal commentator noted:

“The optics are not good... the conclusion was pre-determined and pre-ordained is inevitable.

Pre-judgement before argument or feedback may be a valid means of consultation by government departments but it is wrong in this circumstance and could well provide a basis for intervention by a higher Court.”

A proper procedure, critics argued, would have been for the BSA to notify The Platform of the complaint, call for submissions from all parties, hear argument on both sides, and then decide the jurisdictional question — with full reasons — before proceeding further. Instead, the provisional decision was issued and parties were then invited to respond to a conclusion already announced.

Substantively, the connection between the 2019 paper and the 2026 decision is striking. The reasoning is, as one analyst drily noted, “almost identical.” Both documents invoke the same purposive interpretation of the Act, the same Interpretation Act provision about legislation applying as circumstances arise, and the same extension of “telecommunication” to encompass internet delivery.

The 2019 paper had staked out the jurisdictional position in advance; the 2026 decision applied it. Critics argued the BSA was not interpreting the Act in the context of a new complaint — it was applying a predetermined position it had never properly tested against adversarial legal argument.

The BSA’s own conduct further undermined the credibility of its legal position. Having argued that jurisdiction over online content was always clear under the existing Act, it had simultaneously spent fifteen years calling for Parliament to update the legislation, had paused its own 2019 review citing uncertainty, had never levied an online broadcaster, had never developed a code of broadcasting practice for online content, and had never previously asserted jurisdiction over any internet-only broadcaster.

This institutional track record was difficult to reconcile with the claim that jurisdiction had always been clear — only now requiring formal assertion.

In 2020, it attempted to clarify its own position, announcing it might accept complaints about online broadcasts where there was no other applicable standards body, where the complaint raised issues of public interest or risk of harm. But the legal architecture remained the same: a 1989 statute applied to a 2020s media environment.

The Platform Case

I have discussed elements of the Platform Case in the legal context. I have argued that the BSA decision was incorrect. My reasoning can be found in this article which I published on 2 April.

The reaction from the Government’s coalition partners was swift and rhetorically extravagant. Deputy Prime Minister David Seymour called the BSA “a creature of 1989, before the internet existed.” NZ First leader Winston Peters labelled its actions “bordering on fascist” and accused it of “Soviet-era Stasi censorship.” ACT had already lodged a member’s bill to abolish the organisation.

Politically the BSA was entering a minefield. It had had chosen, as its precedent-setting foray into digital jurisdiction, the most politically connected and vocal opponent available — one with the active sympathy of two of the three coalition parties.

Thus on 6 May 2026, Media and Communications Minister Paul Goldsmith confirmed the Government would introduce legislation to disestablish the BSA. And that came as some surprise although it was not unwelcome to many. Its broadcasting regulatory functions would transfer to the New Zealand Media Council, on a model of self-regulation. Whether Mr Goldsmith can deliver pre-election remains to be seen.

The BSA’s chief executive acknowledged the Broadcasting Act had long outlived its purpose and said the Authority would assist with the transition. Legislation was to be drafted in the coming months; the BSA would continue until the law changed.

A Reckoning: What the BSA Was and What It Left Behind

The demise of the BSA raises questions that are not merely technical. Experts in media and communication warned that its abolition left a meaningful regulatory vacuum.

Associate Professor Peter Thompson of Victoria University of Wellington described the Government’s move as “politically expedient” and “democratically indefensible,” noting there had been no significant public consultation.

Former BSA member Pulotu Tupe Solomon-Tanoa’i said the change was a loss for communities — particularly those whose concerns had occasionally found redress through the formal complaints process.

The New Zealand Media Council — which will inherit the BSA’s role — is a voluntary, industry-funded body. It can uphold complaints and order corrections or apologies, but unlike the BSA it holds no legal powers to enforce its rulings or impose financial penalties. Broadcasters who choose not to join it face no regulatory consequence.

Online platforms like The Platform have indicated no interest in joining. Major commercial operators — TVNZ, Three, radio networks — will likely affiliate, but the regulatory environment they enter will be substantially softer than the one they are leaving.

There is an irony in the story. The BSA had itself argued for more than fifteen years that its enabling legislation was outdated. It had called for modernisation, offered to assist in designing a new framework, and acknowledged the digital world had outgrown the regulatory model of 1989.

It was not destroyed by its failures but by an attempt to remain relevant — to assert, at last, that it could keep pace with a changed media landscape. That attempt, made in the least politically advantageous circumstances imaginable, accelerated what might otherwise have been a slower, more considered transition.

The broader question — whether New Zealand has simply moved from one form of state monitoring of broadcast content to a state of effective non-regulation — remains open.

Self-regulation works where regulated parties have sufficient reputational incentives to comply. Those incentives are strong for major media organisations with established brands. They are considerably weaker for newer online outlets whose business model may depend on provocation, or for international platforms with no stake in New Zealand’s domestic regulatory conversation.

I have developed a voluntary self regulatory model for media and content regulation that provides significant incentivization to participation including safe harbours. I have published my proposal here. It has been described by Dr. Bryce Edwards as principled and practical.

Whether the absence of enforceable content standards in a fragmented digital media environment represents a gain for freedom of speech or a loss for democratic accountability — or, as is likely, both simultaneously — is the question New Zealand media will be living with for years to come.

What Happens If…

1. The BSA is disentablished

Nature and politics abhor a vacuum. The call will go up for a regulatory structure. I have already contributed to that debate and am happy to continue to do so. It may well be that a re-envigorated NZ Media Council will fill the gap.

2. The BSA is NOT disestablished before the election

In this scenario much will depend on who wins the election and forms another Government. If National is the senior partner in a 2026 Coalition it is arguable that the disestablishment of the BSA will continue, subject to what I have to say below.

If Labour forms a Government in 2026 it is highly likely that the BSA will remain, that the disetablishment will be reversed and that the Safer Online Services and Web Platforms proposals will be revived with a newly empowered and re-envigorated BSA as the super-regulator. And it will not be a voluntary system. The Left loves to control the message.

Conclusion

I wrote about the forces at work behind content control in my series on Digital Puritans. If the BSA is not disestablished and a credible regulatory alternative is not in place, the regulation on internet content will become an election issue.

Make no mistake. The forces who favour greater control are well organized and well funded. The move to restrict under 16’s from accessing social media provides an excellent example. And Mr. Luxon is right behind this move. The lines of his political philosophy – if he has one – are so blurred that he could easily qualify as a Centre-Left politician. Center-Right he is not. Center is about as far to the Right that he goes. And thus it will be highly likely that he would endorse moves by the Left to impose greater controls on internet based content.

David Harvey is a former District Court Judge and Mastermind champion, as well as an award winning writer who blogs at the substack site A Halflings View - Where this article was sourced