Max Pakinga-Barber

Summary

In a landmark decision, the Broadcasting Standards Authority found its jurisdiction to enforce broadcasting standards extended to content transmitted via the internet.

Background

The Platform NZ Ltd regularly streamed an internet livestream which involved commentary on topical political issues. In a segment of the programme in July 2025, programme host Sean Plunket made comments about tikanga. An individual complained to The Platform under the Broadcasting Act 1989 (“Act”) alleging that the statement was racist. The Platform dismissed the complaint on the basis that it was not subject to the Act because it was not a broadcaster.

The complainant subsequently referred the complaint to the Broadcasting Standards Authority (“BSA”). In a provisional decision, the BSA held that The Platform was a broadcaster, and that it therefore had jurisdiction to determine whether the statement complied with broadcasting standards under the Act (which include requirements for good taste and decency, and political balance).

In submissions, The Platform disputed that it was a broadcaster subject to the Act. It was joined by interested party Reality Check Radio (“RCR”)

On 31 March 2026, the BSA issued its final decision on jurisdiction. It concluded that The Platform was a ‘broadcaster’ and it therefore had jurisdiction to determine the complaint. It has yet to determine the complaint as to whether the statement breached broadcasting standards.

The case

The definition of ‘broadcaster’ in the Act is defined by reference to the separate definition of ‘broadcasting’. Broadcasting means “any transmission of programmes, whether or not encrypted by radio waves or other means of telecommunication for reception by the public by means of broadcasting receiving apparatus”. However, transmissions of programmes on the demand of a particular person for reception only by that person are excluded from the definition (“On-Demand Exception”)

Are internet transmissions an “other means of telecommunication”

‍The BSA held that internet transmissions were clearly a form of ‘telecommunication’ based on dictionary meanings of the term, as well as usage in other legislation. The key issue was whether it was an ‘other means of telecommunication’ for the purposes of the Act.  

In submissions, The Platform and RCR argued that Parliament intended to limit broadcasting to traditional radio and television transmission. It argued that the Act was made in 1989 before the internet existed, and that the standards were relics of a bygone era where programme standards were the corollary of state licensure of the radio/television spectrum. The Act, they submitted, was not technology neutral and could not be read to extend to the internet without adopting an artificial and impractical interpretation of the legislation.

The BSA disagreed. The purpose of the Act did not relate to licensing of the radio/television spectrum. Instead, it determined (erroneously) that the purpose of the Act was to “maintain programme standards for the New Zealand public". This interpretation required a broad and generous approach to determining the meaning of ‘broadcasting’. The fact that the internet post-dated the Act was not a hindrance, with the BSA relying on the interpretation principle that legislation applies to circumstances as they arise.

Accordingly, transmission of content via the internet would be subject to the Act (including the BSA's jurisdiction in respect of programme standards), unless an exception applied.

On-Demand Exception

The Platform and RCR both argued that the On-Demand Exception applied because its internet content inherently required active user engagement – users needed to seek out and click on the content, rather than passively receiving it by activating a receiving apparatus (as would be sufficient with television and radio broadcasts). Both disputed the BSA’s view that traditional broadcasts were functionally equivalent to internet livestreams. They argued the Act could not be read as technology neutral, and that technological differences meant that radio/television broadcasts were conceptually distinct from transmissions via the internet.

The BSA acknowledged that the scope of the On-Demand Exception was unclear. It relied on tangential comments by the Royal Commission preceding the Act, as well as a definition from the Copyright Act 1994, to hold that the exception was narrow. It only applied where there was a "subscription element", which implied that a user could be assumed to have a foreknowledge and choice about the nature of the content to be consumed. It dismissed the extensive technological distinctions argued by The Platform and RCR as “technical arguments” which were inconsistent with the BSA’s broad conception of the purpose of the Act.

Relevance of freedom of expression

The Platform argued that a broad definition of 'broadcasting' that extended to the internet was an unjustifiable limit on the right to freedom of expression guaranteed by the New Zealand Bill of Rights Act 1990 ("NZBORA"), in that it would subject a large swathe of new content to what was essentially a state censorship power. Section 6 of the NZBORA requires that wherever legislation can be given a NZBORA consistent interpretation, it must be given that meaning.

The BSA dismissed the relevance of the NZBORA, holding that the meaning of 'broadcasting' was so clear that a rights-consistent interpretation could not apply. It went on to state that, if this conclusion was incorrect, the broad purpose of the Act (which it had erroneously concluded was "the maintenance of programme standards in New Zealand") was inherently to limit expression on the internet. Any such limitation was therefore deemed by Parliament to be reasonably justified.

Practical impacts

If the BSA’s interpretation was applied according to its terms, it would extend application of the Act to every person transmitting content via the internet. This meant not only application of broadcasting standards, but also requirements to file annual returns and, for broadcasters with revenue over $500,000 per year, to pay broadcasting levies. These requirements are mandatory under the Act.

Conscious of this, the BSA sought to confine its broad principle only to services like The Platform – namely those that stream in linear form (ie: continuously) content readily accessible via the internet and that are companies holding themselves out as media outlets and deriving revenue from their operations (including advertising). It purported to exclude from its jurisdiction individuals sharing content online 'ad hoc', content delivered by streaming services like Netflix, Disney+, and Youtube, and overseas entities streaming content in New Zealand. The statutory basis for this distinction was not made clear in its decision and will need to be further developed in subsequent complaints.

Result

The BSA concluded that The Platform was a broadcaster and therefore that it had jurisdiction to hear the complaint.

The practical ramifications of the decision are problematic. While the BSA purported to confine the decision to entities like The Platform, statutory rules are of general application. The reasoning in the decision supports a broad approach to the definition of 'broadcasting' (and a narrow approach to the On-Demand Exception) that potentially subjects broad swathes of internet content creators to the BSA's de-facto censorship powers.

For further information, please contact Director Brigitte Morten

Franks Ogilvie represents The Platform in the BSA proceedings.

The closure of the Strait of Hormuz in 2026 during the US-Israel/Iran War highlighted the fragility of New Zealand’s supply of essential fuels. New Zealand relies heavily on imported fuel to operate its transport network, agricultural sector, and the broader economy. At the time of writing, while fuel remains on hand, prices have risen sharply and continuity of supply cannot be taken for granted.

This explainer explores the legal and policy frameworks for New Zealand’s preparation for and response to significant fuel supply disruptions

New Zealand’s fuel market

Since the Marsden Point Oil Refinery closed in 2022, New Zealand relies entirely on private sector imports of refined petroleum, mostly from Asia with shipping times of at least 17 days. Fuel arrives at one of nine ports nationwide, where it transfers into bulk storage terminals before being piped to distribution hubs like Auckland's Wiri terminal or trucked to retailers. It reaches the public through service stations and truck stops, or is delivered directly to sectors such as farming, health, and construction.

International obligations

New Zealand is a party to the Agreement on an International Energy Programme (“Energy Agreement”). The Energy Agreement requires member states to hold 90 days’ worth of net import demand, to be released to the global market in a fuel emergency. New Zealand meets this obligation primarily through purchasing offshore options contracts rather than holding stocks domestically. The International Energy Agency (“IEA”), which administers the Energy Agreement, can also direct that member states implement domestic measures, including regulation to restrain consumption and demand, once certain fuel emergency thresholds in the Energy Agreement are triggered.

As an international treaty, the Energy Agreement is only legally binding in New Zealand to the extent it is incorporated in legislation. The International Energy Agreement Act 1976 (“IEAA”) provides a mechanism for New Zealand to fulfill its obligations under the Energy Agreement, but it does not make that agreement legally binding on New Zealand. However, breaches are likely to damage New Zealand’s international standing, meaning there are strong reputational incentives to comply with IEA directions.  

In the 2026 crisis, New Zealand and other member states voted in March 2026 to release 400 million barrels of oil to the global market. While the IEA recommended that member states implement demand restraint regulations, this is not direction binding on member states as a matter of international law.

Domestic readiness framework

National fuel plan

In 2024, MBIE published the National Fuel Plan (“NFP”) as a readiness and response framework for fuel disruptions. The NFP sets out the responsibilities of fuel companies and various government agencies to prepare for and respond to a fuel crisis. Primary responsibility for readiness rests with the fuel industry, which have responsibilities as ‘life line utilities’ under the Civil Defence Emergency Management Act 2002 (“CDEMA”) to ensure continued supply to critical functions

The NFP also sets out the different levels of a response to a significant fuel supply disruption, with the state having a correspondingly greater role the more severe the disruption (see below).  

Minimum stockholding obligations

Separately, the Fuel Industry Regulations 2021 impose minimum stockholding obligations on importers of ‘obligation fuels’, calculated in thousands of litres. The minimum stockholding obligation is calculated by multiplying the required number of days of obligation fuels (28 for petrol, 24 for aviation fuel, and 21 for diesel) multiplied by the average daily demand from the previous reporting year.

The minimum stockholding obligations are separate from New Zealand’s obligations under the Energy Agreement. They are explicitly focused on security of domestic supply.

Government response to fuel supply disruptions

Response levels

The NFP sets out four levels for a response to a supply disruption. The first two levels (which apply in minor to moderate supply disruptions) involve activation of civil defence governance frameworks but with limited direct state intervention. Levels 3 and 4 (which cover major to severe disruptions) contemplate full activation of civil defence powers (including declaration of states of emergency), as well as imposition of governmen regulations to restrain fuel demand. The same framework applies to local/regional supply disruptions caused by natural disasters as to national disruptions caused by global supply shocks.

In March 2026, the government tweaked NFP response levels (now re-labelled ‘phases’). The phases are in substance similar to the response levels under the NFP, but with a much greater emphasis that any government intervention will be exceptional, limited, and temporary. The government is currently consulting with fuel suppliers and consumer groups about the detail of phases 3 and 4.

Non-coercive measures to address fuel disruptions

While industry has the primary responsibility at phases 1 and 2, there are several mechanisms the government can use to both reduce demand and increase supply. To achieve the former, the government can activate messaging advising consumers how to reduce fuel, issuing non-binding directions for certain fuel conservation practices (such as working from home), and adjusting work practices in the public sector. To achieve the latter, it can relax land transport regulations to provide for transport bottlenecks (only effective in local emergencies) and lower engine fuel specifications to allow a wider range of fuels to enter the New Zealand market.

Civil defence powers

The NFP also contemplates that certain fuel supply disruptions are likely to be managed under states of emergency declared under the CDEMA. Doing so activates a statutory coordination framework between central and local government and lifeline utilities, as well as providing for emergency powers (although less extensive than the powers available under demand restraint regulations).

Demand restraint regulations

The government is empowered to make mandatory demand restraints via regulations made under the Petroleum Demand Restraint Act 1981 ("PDRA"). While the government has signalled that these powers will only be exercised in phases 3 and 4, this promise does not act as a direct legal constraint on their use.

Similar demand restraint powers are available under the IEAA, but the powers are narrower and subject to relatively greater constraints. In a supply disruption, the government is therefore more likely to rely on the PDRA.

Content

The PDRA grants the Cabinet unusually broad regulation-making powers. These include controlling or prohibiting the sale and supply of fuel, imposing rationing schemes, restricting motor vehicle use, and exempting persons acting under the regulations from both legislative and contractual obligations. Regulatory powers can be sub-delegated directly to the Minister of Energy by direction, including directing supply to specified persons.

Constraints

The legal constraints on these powers are minimal. The only express condition is that regulations must be directed at restraining demand for petroleum products, or ensuring their equitable distribution when supply is, or is likely to be, short. Notably, an actual supply disruption is not required to trigger the powers. There are none of the procedural safeguards common to modern legislation, such as mandatory considerations, consultation requirements, or other procedural/oversight mechanisms, though the Minister must undertake "appropriate consultations" before issuing directions under any regulations made.

Controversial features

This latitude for unchecked executive action reflects the legislation's origins in the interventionist ‘Think Big’ era before the liberalizing reforms of Lange government after 1984. Several features are particularly controversial by contemporary legislative standards.

The breadth of available interventions is striking. Rationing, price controls, and sweeping restrictions on vehicle use (reminiscent of Muldoon-era "carless days") are all legally available to the current government, even as it has signaled a cautious approach to the 2026 crisis. The ability to sub-delegate wide interventionist powers directly to the Minister further bypasses the limited scrutiny that accompanies Cabinet regulations of general application.

The duration of any regulations is also a concern. PDRA regulations are confirmable instruments, expiring after five years unless confirmed by Parliament through primary legislation. This contrasts sharply with states of emergency under the CDEMA, which expire after 7 days without formal extension.

Perhaps most controversial is the power under s 7(2)(a)to exempt persons acting under the regulations from liability for breaching other legislation or contracts. Provisions of this kind, known as Henry VIII clauses, allow the executive to override Parliament and come with a high risk of abuse unless the power is narrow and constrained (which is not the case withs 7(2)(a)). Modern courts apply strict and narrow interpretations to such clauses.

The PDRA is, in short, a product of a different era, out of step with modern legislative norms and judicial expectations. Whether it will prove adequate if the 2026 fuel crisis deepens, or whether the government will need to follow its predecessor's Covid-19 example and enact purpose-built legislation, remains an open question.

For further information on this or similar issues please contact Director, Brigitte Morten

Buying alcohol over the Easter break can often cause confusion. The Sale and Supply of Alcohol (Sales on Anzac Day Morning, Good Friday, Easter Sunday, and Christmas Day) Amendment Act 2026, which takes effect on Good Friday 2026, has relaxed some prior Easter trading rules.  

Here are four things you need to know so you don't get caught dry:

1.      Most off licences can’t sell alcohol on Good Friday or Easter Sunday. That includes all supermarkets, bottle stores, wineries, breweries and anywhere that sells alcohol to take away.

2.       There’s an exception to off-licence rules for wineries. These businesses are allowed to sell wine off-licence from their cellar door if they make the wine on site or harvest the grapes used to make the wine on site.  

3.      On licences like bars, restaurants, and cafes with a licence to sell alcohol to be drunk on-site can sell alcohol on Good Friday and Easter Sunday within their authorised opening hours. Old restrictions that required consumers to be a guest at the premises or be “on the premises to dine” to be eligible to be served alcohol were abolished in 2026.  

4.      Trading on Saturday and Monday is not affected.

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