A Tale of Two Bills

Opportunities to Read the Room

This article is about two Bills currently before the New Zealand Parliament. The Fair Digital News Bargaining Bill (FDNBB) is a matter about which I have written in the past. I oppose the Bill.

The second Bill is the Principles of the Treaty of Waitangi Bill. I support this Bill and will discuss it in further detail later in this article.

Both Bills are going to require our lawmakers to read the room and get a sense of what the nation wants. The only problem is that the loudest voices in the room are not representative of the majority.

Mainstream news media organisations (MSM) favour the FDNBB. It is in their interests to do so. Rather than having to rely on market forces for their survival this indirect form of subsidy will allow them to continue.

Their obvious bias is reflected in this article by Shayne Currie in the NZ Herald for 13 November.

Allegations of “bullying” by Google are, of course, unsubstantiated and the eminence grise of the News Publishers Association, Andrew Holden, engages in lawyer-like hair splitting when he argues that the bill was not a tax. Holden then goes on to point to successful litigation against Google in the US although that litigation was in the nature of anti-trust rather than providing links to news media sources.

The irony of all this is that what the platforms provide are links to the MSM news sources. If I follow a link from Google news I get to the MSM site. It may be that Google gets some advertising revenue but in the final analysis my Mark 1 Human Eyeball falls on content from the MSM site after all!

As a further example of media bias on this topic, of their unwillingness to consider an alternative argument, I wrote an op-ed piece on the FDNBB and submitted it to the Herald. I received no acknowledgement of receipt. I did not receive the courtesy even of a rejection. The rest, in Hamlet’s last words, is silence.

Should the Bill be enacted it is more likely than not that the platforms like Google and Facebook will no longer link to news content. There are downstream consequences that would disadvantage a significant proportion of the populace.

The FDNBB proposes that the large digital platforms such as Facebook and Google should be compelled to negotiate around the payment of a levy for their use of mainstream media content.

The reality is that they don’t actually use the content. They provide links to it. Google news is a prime example. It is for this reason that the country director of Google in New Zealand, Caroline Rainsford, describes this as a “link tax”.

But in the process, advertising has migrated from mainstream news sites to the large platforms. This has had implications for MSM revenue streams.

The FDNBB was introduced by Labour as a means of ensuring that there was an “adjustment” in revenue streams ensuring ongoing support for MSM. It was a classic socialistic ploy. Take from those who have and give to those who haven’t and ignore the commercial realities.

Not unsurprisingly the platforms suggested that were the Bill enacted they would leave the news linking space as indeed they have done in other jurisdictions where similar legislation has been enacted. In Canada Google has avoided coming under the scrutiny of a similar bill by making a lump sum payment to be divided among media outlets. And a similar Act in Australia has not been engaged because the platforms and MSM have entered into their own arrangements.

But should the platforms discontinue their practice of providing links to news sites those who use the platforms as their entry point for their news feeds would no longer be able to do so.

It has been known to MSM outlets for at least the last 10 years that the platforms are the principal entry point for access to news. I acknowledge that I am in a minority in that I link direct to the MSM sites.

Although the Bill may be popular with MSM, which is no surprise, a recently commissioned poll suggests that should Google and Facebook no longer provide links to NZ news that there would be considerable annoyance.

The unavailability of NZ news stories through search engines or social media sites means that 32% of respondents said they would be very annoyed and a further 33% somewhat annoyed. 20% of respondents would not be annoyed at all.

Looking at the figures more closely 75% of those surveyed who were under 40 would be somewhat or very annoyed at the unavailability of NZ news links on the digital platforms.

This cohort of the survey group comprised “digital natives” who live a significant part of their lives in the digital space so the results were not surprising at all.

Even so, at the other end of the age spectrum 52% the 60+ cohort would be somewhat or very annoyed at the unavailability of NZ news links.

69% of women and 60% of men polled would be somewhat or very annoyed at the fact that NZ news was not available via the platforms

More Aucklanders (65%) than Wellingtonians (57%) would be somewhat or very annoyed at news unavailability.

On the basis of party votes the figures are interesting. 96% of Te Pati Maori voters registered that they would be somewhat or very annoyed with news unavailability via the platforms, followed by the Greens at 70% and Labour at 69%. Even 62% of National voters would be annoyed or somewhat annoyed at the unavailability of platform based news access

Given that this was a Left initiative in the first place in terms of consequences surrounding news media access the Left may have shot itself in the foot if it insists on the Bill proceeding. Likewise there would be a majority of those who vote National who would not be too happy if National insisted on the Bill proceeding.

Hot on the heels of the availability of the survey came the news that the FDNBB which had been down for a second reading on 13 November 2024 had been removed from the Order Paper. The Bill has been described as “snagged” although on a radio interview the Prime Minister said that the Bill was still alive but there were other measures that took priority.

In my view, as I have argued previously, Bill is flawed in that it tries to preserve MSM by way of a levy system when the proper and more principled approach would be to address the use of links to MSM under copyright principles. There would have to be some amendments to the Copyright Act but that was the proper place for such proposals to live.

Should the Government unwisely proceed with the Bill they could face yet another reason for dissatisfaction on the part of the populace.

The recently released survey should be both a wake up call and an opportunity to “read the room”.

The second Bill is the Principles of the Treaty of Waitangi Bill. This is the Bill which the Waitangi Tribunal has held would be in breach of the Treaty and they were able to do this before the language of the Bill was known. One wonders if the Tribunal has some sort of extra sensory perception that allows them to make such a finding or perhaps there is an element of maturanga Maori that enables such a finding.

But the wording of the Bill is now known and in many respects, as I shall demonstrate, it is uncontroversial.

The objective of the Bill is to define what the principles of the Treaty are in statute to do the following:

create greater certainty and clarity to the meaning of the principles in legislation:

promote a national conversation about the place of the principles in our constitutional arrangements:

create a more robust and widely understood conception of New Zealand’s constitutional arrangements, and each person’s rights within them:

build consensus about the Treaty/te Tiriti and our constitutional arrangements that will promote greater legitimacy and social cohesion.

The explanatory note to the Bill states that
“Parliament introduced the concept of the Treaty principles into legislation in the Treaty of Waitangi Act 1975, partially to reconcile the differences between the 2 texts. Parliament, however, did not define those principles.

The Treaty principles, as defined at this time, help reconcile differences between the te reo Māori and English texts and give effect to the spirit and intent of the Treaty when applied to contemporary issues. They apply to policy and operational decisions by Government (exactly what this requires depends on the context and there is guidance available to assist decision makers). They are used in the interpretation of legislation and are used by the Tribunal to review proposed Crown action or inaction, policies, and legislation.”

Putting it simply, the Bill proposes a definition of certain principles that are to be used in interpreting legislation and to act as guidance for decisionmakers in Government. They may be employed by the Waitangi Tribunal when that body reviews Crown action or inaction, policies, and legislation.

Section 6 of the Bill sets out the principles. I reproduce the section.

The principles of the Treaty of Waitangi are as follows:

Principle 1

The Executive Government of New Zealand has full power to govern, and the Parliament of New Zealand has full power to make laws,—

(a)          in the best interests of everyone; and

(b)          in accordance with the rule of law and the maintenance of a free and democratic society.

Principle 2

(1)          The Crown recognises, and will respect and protect, the rights that hapū and iwi Māori had under the Treaty of Waitangi/te Tiriti o Waitangi at the time they signed it.

(2)          However, if those rights differ from the rights of everyone, subclause (1) applies only if those rights are agreed in the settlement of a historical treaty claim under the Treaty of Waitangi Act 1975.

Principle 3

(1)          Everyone is equal before the law.

(2)          Everyone is entitled, without discrimination, to—

(a)          the equal protection and equal benefit of the law; and

(b)          the equal enjoyment of the same fundamental human rights.

Section 7 states that these principles must be used to interpret an enactment if principles of the Treaty of Waitangi are relevant to interpreting that enactment (whether by express reference or by implication). Those principles and only those principles can be used. The subtext is that the Courts cannot create a separate set of principles.

Significantly section 9 provides that nothing in the Bill amends the text of the Treaty of Waitangi/te Tiriti o Waitangi.

And that is pretty much it.

Yet as I write this the City of Auckland is being tied up and gridlocked as protesters against Government policies affecting Maori have started to cross the Harbour Bridge. Worms of red indicating blocked traffic infest Google maps and my GPS traffic map in my car.

Perhaps the major focus of the protest is the Bill. So what are they against. I assume it is the Bill in general. But I wonder if the protesters are aware of what the Bill says.

So let us put to one side the title of the Bill and the reference to “Treaty Principles” and see what section 6 says.

Principle 1 confirms that the Executive and Parliament have the power to govern New Zealand in the best interests of everyone (not just the majority) and importantly in accordance with the Rule of Law and the maintenance of a free and democratic society.

Thus Principle 1 confirms the Governmental structure of New Zealand in terms of what could be called a liberal democracy. Were that principle to state something that disenfranchised a section of the population, provided for rule by an unelected executive or that the Rule of Law was subservient to the will of the Prime Minister we may have something to argue about.

Principle 1 as it stands would be recognised and applauded by Enlightenment thinkers such as John Locke, Thomas Jefferson and John Stuart Mill.

But if the protesters are opposed to the Bill, they must therefore be opposed to the concept of Government under the Rule of Law. They must be opposed to the concept of government in the best interests of everyone. In short they are opposed to a democratic government.

I shall return to Principle 2 and cut straight to Principle 3.

This provides for equality before the law and, without discrimination the equal protection and benefit of law and the equal enjoyment of fundamental human rights.

So the protesters are against this? By opposing the Bill they must be. So they would have a societal structure that favours discrimination, that does not allow equal protection and benefit of law and they would reject the proposition that there cannot be unequal enjoyment of fundamental human rights.

This scenario was played out in Orwell’s Animal Farm. All animals are equal but some are more equal than others. And as readers of Animal Farm will recall, it was the pigs who were at the top of the heap – the most equal of the more equal.

Finally Principle 2. This cannot be considered in isolation from the Treaty because what it does is that it guarantees the rights that Maori had under the Treaty at the time it was signed. If those rights differ from those enjoyed by everyone, then the rights that Maori enjoyed must be agreed in settlement of an historical treaty claim under the Treaty of Waitangi Act 1975.

This means that the Crown recognises the rights that hapū and iwi had when they signed the Treaty/te Tiriti.

The Crown will respect and protect those rights.

Those rights differ from the rights everyone has a reasonable expectation to enjoy only when they are specified in Treaty settlements.

So what’s not to like in this Bill. If you have been the beneficiary of an approach to the Treaty which allows it to be a movable feast, which adopts a revisionist approach to history, which keeps matters such as the “principles” of the Treaty as vague and ephemeral then of course at least the second Principle would be anathema.

The problem with Principles 1 and 3 is that they are crystallised principles. They are expressed in plain and clear language. They don’t allow for slippery legal analysis. They are NOT movable feasts but are unequivocally expressed. And they are applicable to everyone. And as crystallised principles they cannot be manoeuvred around or manipulated to suit a particular purpose, which has been the case with the unclear and ill-defined “principles” to date.

So we have New Zealand’s largest city tied up by a protest by people who, if one follows the logic of their argument, are opposed to democratic Government, are opposed to principles of equality and equal treatment before the law and the equal enjoyment of human rights and want to be able to define whatever rights they like under the Treaty irrespective of whether those rights and interests were alive when the Treaty was signed.

We have people who have had their travel disrupted, emergency services disabled or subject to serious interference, workers unable to get to work, children delayed in getting to school, especially at this critical exam time and one wonders how they must be feeling about a protest that is based on freedom of expression and the right to protest which would remove from a large section of the community the very rights that the protesters are exercising, aided and abetted by a compliant and complacent NZTA (aka Waka Kotahi who permitted a walk across the Bridge)

Our Prime Minister says that this Bill will go no further than Select Committee. There will be no second reading. Perhaps he should emerge from his Beehive and talk to the people – to the people who have suffered as the protesters disrupted their working day at peak time. See what the electorate thinks. Remember, Prime Minister, that you are their servant. You fulfil the will of the people.

Perhaps on this matter as well as the FDNBB the Prime Minister would do well to read the room and act accordingly.