Static Interference
Speech is Silver, Silence is Gold[smith]
The clash between the Broadcasting Standards Authority and The Platform has exposed a troubling reality in New Zealand’s system of government: ministers can now routinely hide behind the mantra of “operational matters” to avoid accountability for regulatory overreach happening on their watch.
Minister for Media and Communications Paul Goldsmith’s refusal to engage with the BSA’s bold attempt to extend its jurisdiction over internet content represents not principled adherence to constitutional convention, but an abdication of ministerial responsibility that demands a remedy in the form of either a change in approach or a change in minister.
The BSA’s Power Grab and Ministerial Silence
When the BSA announced its interpretation that an outdated Broadcasting Act gave it authority to regulate internet platforms, it was reasonable for us to expect the responsible minister to respond.
This is more than an administrative decision about processing a complaint within a widely accepted framework. It was instead a fundamental expansion of state regulatory power into new territory, on the basis of a view for which there is no consensus, with profound implications for free speech and internet freedom.
It was incredibly frustration to see Goldsmith declare a preference to let things “flow through the system” and making only broadly supportive noises about the BSA. In short, the Minister has acted as if he was the BSA’s representative to the people and not the other way around.
The Convention and Its Limits
The convention of non-interference in operational matters exists for sound reasons. Ministers should not direct individual prosecutions, interfere with specific police investigations, or pressure regulatory bodies to rule particular ways in quasi-judicial proceedings. This protects against the politicisation of justice and preserves the impartial application of law.
However, there is a critical difference between:
The improper interference of directing the BSA how to rule on the merits of a specific complaint or pressuring them to change a decision.
The proper ministerial accountability of at least expressing concern about an agency’s interpretation of its statutory mandate, seeking advice on whether legislative clarification is needed, signalling policy priorities and ensuring an independent body hasn’t exceeded its lawful authority.
In this case, the “operational question” arises if jurisdiction is properly established, at which point it becomes whether Sean Plunket’s specific conduct breached broadcasting standards. That would be a quasi-judicial determination the Minister rightly could not direct.
But whether the BSA should have jurisdiction over internet platforms at all, and whether it should unilaterally expand its own mandate through creative interpretation of an older statute, written before the modern internet existed, are emphatically policy questions.
They involve fundamental choices about the scope of state regulatory power, the balance between free speech and content moderation, and which institutions should govern digital media. These are precisely the matters on which ministers must provide leadership and be accountable to Parliament and the public.
By treating the jurisdictional power-grab as if it were merely an operational detail of complaint-handling, the minister looks like he is conflating two entirely different categories of decision-making to duck responsibility for the latter.
How Ministers Can and Should Exercise Oversight
A competent minister facing the BSA situation had multiple appropriate responses available that would not constitute improper interference:
