NZ on Air wants to stop people thinking they are biased in a partisan way. So why are they being accused of acting in a way that shows partisan bias?

Over on Scoop, Tom Frewen has done a commendable bit of digging into NZ on Air's response to TV3's decision to screen the documentary "Inside Child Poverty" – a NZ on Air funded documentary highly critical of successive governments' policy on the issue – 4 days before last year's election. He's revealed that the agency's Board subsequently sought legal advice as to whether it can insert a clause in its funding contracts "requiring broadcasters not to screen programmes likely to be an election issue within the Election Period as defined in the Broadcasting Act".

I'll get to the substance of NZ on Air's potential – and it is as yet only "potential", for no final decision apparently has been made – efforts to control what happens with the content they fund in a moment. But before doing so, why exactly was NZ on Air so concerned about this documentary? Was it the programme's content? Well, no ... that's not something NZ on Air is allowed to involve itself with. If there were concerns about what the documentary said about child poverty, the Broadcasting Standards Authority is the proper home for them - or perhaps the Electoral Commission, which rejected complaints that the programme breached electoral law.

Instead, NZ on Air was miffed that TV3 decided to run a documentary it funded that raises controversial political issues so close to election day, because (according to the NZ on Air Board chair Neil Walters) "we could attract some flak". NZ on Air's CEO, Jane Wrightson, echoed this concern in an email to the then Broadcasting Minister, Jonathan Coleman: "We are jealous of our reputation as a politically neutral and impartial agency and put considerable effort into protecting that reputation. We take pains to ensure that we do not put ourselves in a position where we can be accused of political bias."

Well, if that was NZ on Air's concern, then its response has been spectacularly self-defeating. The story has now gone from a couple of critical blog-post mentions of its role in the documentary's making plus an upset email from (apparently) a member of the National Party's Board, to headlines such as this ("NZ on Air to stop docos in election lead-up") and this ("Stoush over poverty documentary screening") and this ("Doco censorship called an 'affront to democracy'").

Yes, I know these may be over-the-top mischaracterisations of the options NZ on Air still is investigating. However, given that its angst over TV3's original scheduling move was all about public perceptions rather than substance, you might have thought that the agency's Board would consider how it would look for it to respond to concerns raised by one of its members who happens to be John Key's electorate chairman, echoing criticisms made by a blogger with strong links to the National Party, when the only apparent complaint to it came from (apparently) a member of the National Party Board, by seeking legal advice on whether it can stop documentaries critical of government policies from being aired in the run up to an election.

Even if everyone involved genuinely had a non-partisan interest in ensuring that the election process was fairly conducted and that NZ on Air was not seen to be complicit in improperly influencing the outcome, you'd think it might have occurred to someone at NZ on Air that the "optics" of this situation might look a little... politically biased and partial. 

So at the least, NZ on Air has learnt that when you have a stove fire in your kitchen, petrol is not the most effective way to extinguish it. For what it is worth, I suspect that NZ on Air's concern was not so much how the general public might view its role – the general public, I would hazard a guess, knows next-to-nothing about the agency's existence – and more with how the returning National regime might react to this event.

Now, I'm not suggesting the National Government would do anything so crude as to extract vengeance on NZ on Air for playing a part in potentially derailing its quest for an overall majority. But we live in straitened fiscal times, where all forms of public expenditure is under close scrutiny. And compared to things like, say, combatting child poverty, giving $127 million to production companies and the like so that we can "see more of NZ on Air" must look like one of those "nice to have" luxuries that we just can't afford any more. Particularly when a chunk of that cash went to make a programme that was, how to put it, unhelpful to the present holders of the public purse strings... .

Simply put, all those who sit on public boards or work in the public service want to keep their Minister happy... especially when their budgets potentially are on the line. Hence NZ on Air's decision to react to TV3's scheduling decision – and this was TV3's decision alone – not with a press release explaining that NZ on Air has absolutely no control over what gets done with the programmes they fund, but rather with a frantic effort to identify some way they can reassure their Minister that this will never happen again. 

However, if we step beyond NZ on Air's motives and the fact they've turned a molehill into a towering inferno, what of the concerns it is seeking to address? Is it right to want to restrict how TV channels can use any "programmes likely to be an election issue" that it funds, so as to avoid any possible accusation of bias or partisanship? Or, as DPF put it in one of his more excited pre-election rants, to avoid again being associated with a decision to have "a taxpayer funded documentary which is clearly anti-Government show in the final week of an election, [that] goes against the rules designed to have a fair contest"?

First of all, we should note that there already exist "rules" controlling what can be screened during an election period. There is a blanket prohibition on "election programmes" (in effect, party-political adverts), aside from those screened using time or money allocated to political parties by the Electoral Commission. This documentary isn't covered by that prohibition, as there is a specific exception for "current affairs programmes". And despite DPF's continuing claim that the documentary "should have had an authorisation statement on it, as it was very partisan against National",  the Electoral Commission also rejected a number of complaints that it breached the Electoral Act's rules on election advertisements. 

Furthermore, the Free-to-Air TV Code overseen by the Broadcasting Standards Authority requires that broadcasters adhere to standards of accuracy and present a range of viewpoints on controversial issues. Again, these standards apply to all broadcasters and to all programmes they screen, irrespective of how they were paid for. I don't know if any of the critics of the documentary have availed themselves of this avenue of complaint, but assuming that they have done so (rather than just blogged on the matter), time will tell if the BSA believes the documentary breached them. And if it does, TV3 will suffer the appropriate penalty for breaching the rules – just as it did when it breached them with its "Corngate" interview of Helen Clark back in the 2002 election campaign (an intervention in the election process by a broadcaster that, strangely enough, I can't seem to find any criticism of in the Kiwiblog archives).

Therefore, what NZ on Air (supported by DPF then and now) are looking to introduce is an additional rule that will apply only to those programmes that it funds, specifying that if they deal with matters "likely to be an election issue", they cannot be shown in the month leading up to the election.

Note that any such programme not funded by NZ on Air could still be screened: had the costs of making "Inside Child Poverty" been paid for by a private New Zealand individual or trust, then it could still be shown; as could any documentaries sourced from overseas (like this, for instance). So we wouldn't have a new rule that stops broadcasters improperly showing any material that might swing the election one way or the other... just a rule that stops NZ on Air funded material from screening. Which seems a little odd, if your concern is protecting the election process as a "fair contest". 

But doesn't the fact that a programme is funded by NZ on Air justify such a rule? After all, if the taxpayer is funding a programme, shouldn't we make sure that the product of those tax dollars does not improperly sway the decision taxpayers make as to who will represent them? Well, you can push that barrow if you want to (but note how much weight falls on the word "improper") – the question is, how far until you put it down?

Does the fact Radio New Zealand is taxpayer funded mean that it may not engage in any news or current affairs activities in the month before the election? Does the fact that TVNZ is taxpayer funded mean it has to screen nothing but a steady diet of reality TV shows and Coronation Street for the month before polling day (and would you notice the difference)? What about the fact that both Q&A and The Nation receive NZ on Air funding – does this mean that they must cease their activities once writ day takes place, or will they get a special exemption from the "no taxpayer money on controversial programmes" rule (and if so, why)?

Of course, you can try and wriggle around this problem. So, DPF opines that "I don’t think taxpayer funding programmes should be interfering with the election, unless they are part of the normal news and current affairs of a channel." Why exactly there should be a distinction between the "normal news and current affairs of a channel" and "non-normal" programming isn't really explained. And what about, for example, election debates. Both TVNZ and RNZ – taxpayer funded institutions – held a number of special programmes devoted to allowing political leaders to influence the voters in the run-up to the election. I assume these extra programmes that differed from the channel's "normal" ones are forbidden under the Farrar rule? Because if not, why not? And is there any way to tell what is or is not allowed under the Farrar rule, apart from asking him directly?

And that's all without dealing with the question of what programmes are "likely to be an election issue", and thus are subject to NZ on Air's proposed prohibition on pre-election screening. A documentary on child poverty that is scathing of government policy? Of course! A documentary on milk production that criticises its effect on water quality (without mentioning any political parties)? Ummm... a bit tougher, but probably. A documentary on NZ soldiers experiences in Afghanistan, including footage that shows US troops mistreating local civilians. Ahhh... I guess it could, couldn't it? What about an episode of "This is Your Life" on David Kirk, which mentions he sought the National Party nomination for Tamaki in 1992? Well, now I'm just being silly... aren't I? Unless, of course, someone felt minded to complain about the programme in a blog post and thus call into question the impartiality and non-partisan reputation of NZ on Air... . 

So, I'll end on a homily. Sometimes the best solution to a problem is to just pretend you don't see a problem in the first place.