BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

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Headnote

Complaint under section 8(1)(a) of the Broadcasting Act 1989
Interlocutory decision on production of field tape of interview with representative from Ministry of Health - featured in 3 News Special entitled "Let Us Spray" on 23 October 2006 - question of whether field tape should be provided to Ministry of Health

Decision
Authority to supply a copy of the field tape to Ministry of Health - section 12 Broadcasting Act 1989 and section 4C Commissions of Inquiry Act 1908

This headnote does not form part of the decision.

INTERLOCUTORY DECISION

Background

[1]   A 3 News Special entitled "Let Us Spray" was broadcast on Monday 23 October 2006 at 7.30pm on TV3. The programme contained interviews with several Paritutu residents and their extended families, all of whom believed that various illnesses and birth defects were a result of exposure to 2,4,5-T or 2,4-D. It also reported the results of a blood serum study released by the Ministry of Health (MOH), and a forensic accountant outlined concerns about the accuracy of the report.

[2]   MOH made a formal complaint to CanWest TVWorks Ltd, the broadcaster, that the programme was unbalanced, inaccurate, and unfair to the Ministry. Having received a response from the broadcaster, it then referred its complaint to the Authority on 2 February 2007. It noted that a Ministry representative (Dr Mark Jacobs) had been interviewed, and excerpts of that interview had appeared in the programme. MOH argued that the Authority should ask or require CanWest to provide a copy of the field tape of an interview with Dr Jacobs in order for it to assess whether standards of balance and fairness (in particular, the editing of the interview) had been breached. It also submitted that the Ministry should be provided with a copy of the tape in order to complete its response effectively.

[3]   On 5 September 2007 the Authority asked CanWest to provide it with a copy of the field tape, advising the broadcaster that it had completed a preliminary assessment of the complaint. On 11 September 2007 the Authority advised CanWest that it intended to provide MOH with a copy of the field tape. The broadcaster responded that it did not believe MOH should be provided with a copy of the tape, and it requested an opportunity to provide submissions to the Authority in respect of this matter.

[4]   The release of the field tape to the Authority was addressed in Interlocutory Decision ID2007-012 (10 October 2007) in which the Authority said:

Accordingly, pursuant to section 12 of the Broadcasting Act and s.4C(1)(b) of the Commissions of Inquiry Act, the Authority directs CanWest to provide it with a copy of the field tape of the interview with Dr Jacobs, portions of which were broadcast in the 23 October 2006 programme. The field tape must be lodged with the Authority by 5pm on Friday 12 October 2007.

Further, the Authority invites CanWest to make written submissions as to whether the field tape should be released to MOH and, if so, on what terms. These submissions are to be lodged with the Authority no later than 5pm on 17 October 2007. It will also seek written submissions from MOH within the same timeframe. The Authority considers that written, rather than oral, submissions will be sufficient for the parties to make their arguments.

CanWest’s submissions

[5]   The broadcaster stated that the Authority’s powers under the Broadcasting Act and the Commissions of Inquiry Act were to be exercise in a manner that was consistent with the New Zealand Bill of Rights Act 1990 (NZBORA). It contended that the Authority, when exercising its powers, must strike a balance between the need to compel the material to be produced to the complainant and the right of the broadcaster to refuse to disclose it.

[6]   CanWest maintained that the Authority must first determine the relevance of the field tape to the issues before it. Here, it said the relevant issue was likely to be whether the broadcast was fair and allowed MOH a reasonable opportunity to "have its say" on the issues under discussion. It wrote:

Only when the Authority considers, having looked at the programme and considered the submissions of the complainant and the broadcaster, that there is an issue as to whether the programme contained sufficient material to be fair or to present the MOH perspective on the material issues, can it then proceed further. Once it has established a foundation for relevance it can enquire from the broadcaster what other material was available which might have rendered the broadcast fair or more adequately presented the MOH point of view.

[7]   Once relevance had been established, the broadcaster said, and the Authority had found the broadcast programme lacking in some material way, the Authority could require the broadcaster to provide the full interview with Dr Jacobs. It must then determine whether it was necessary to allow MOH to be given access to material that did not form part of the broadcast.

[8]   CanWest stated that it was established in courts of general jurisdiction that a party seeking disclosure must first establish relevance - i.e. a proper evidential foundation for the material to be disclosed - and a need to have the material in order to properly progress its complaint. It submitted that it was not appropriate or necessary for MOH to have access to material that was not included in the programme.

[9]   The broadcaster acknowledged that there was no secret source or highly confidential material in the full interview. Its objection was purely on a point of principle, it said, and "what is at stake is editorial independence and integrity".

MOH’s submissions

[10]   MOH noted that the Authority was required to respect the principles of natural justice according to section 10(2)(c) of the Broadcasting Act 1989. It stated that there were two aspects to natural justice: the right to an unbiased decision-maker, and the provision of "a fair opportunity to those who are parties in the controversy for correcting or contradicting anything prejudicial to their view" (Board of Education v Rice [1911] AC 179). MOH said that, in general, the second aspect included the right to see all information before the decision-maker that may be relevant to the decision.

[11]   The complainant submitted that the field tapes of the interview (it said there were two) were extremely significant pieces of evidence in that they went to the heart of the dispute between the parties. It added that the Authority’s usual practice of deciding complaints on the papers, rather than providing an opportunity for oral argument, increased the importance of full disclosure so that the written arguments could be properly informed.

[12]   Simple natural justice, MOH wrote, dictated that the Authority could not make its decision based on, or influenced by, material that was available to one party but not the other. Similarly, it said that it was “an anathema to natural justice” that one party may cherry-pick parts of the evidence to bolster its case, without the other party being given the same opportunity.

[13]   The complainant also contended that providing a copy of the tapes to MOH would minimise the chance that the Authority would need to interrupt its decision making process and seek a response from MOH to any unfavourable conclusions or impressions it reached when viewing the tapes itself.

[14]   MOH stated that the case law on natural justice revealed that there were circumstances where relevant material did not need to be fully disclosed. However, it said, none of those exceptions applied in this case. It submitted that the material on the tapes was not confidential, and it was difficult to see how CanWest could suffer any serious harm from the disclosure. It added that there was no pressing need for prompt action that might excuse a lesser degree of procedural fairness, and the issue was a serious one affecting MOH’s reputation.

[15]   The complainant submitted that the courts in New Zealand had repeatedly said that evidence from field tapes, demonstrating which parts of the tapes have been included and excluded, were of central importance to questions of balance and fairness (e.g. Comalco NZ v Broadcasting Standards Authority (1995) 9 PRNZ 153 (CA) PDF (714.73 KB)). It referred to the following statements by Heron J in Television New Zealand Ltd v Ombudsmen [1992] 1 NZLR 106:

Section 4 in its terms must require an investigation into extrinsic material by reason of the criteria relating to reasonable efforts and reasonable opportunity. Any real investigation into the way in which a broadcaster had carried out its obligations under the Act would be extraordinarily contrived if access was not available to the surrounding circumstances when determining a complaint. Those circumstances would necessarily include other material available but not used.

[16]   Looking at the present case, MOH stated that a variety of circumstances made it imperative that the Ministry be allowed to view and comment on the field tapes. These included:

• the selective use by the broadcaster of some of the material on the field tape in its response to MOH’s referral of the complaint to the Authority
• the broadcaster’s invitation to the Ministry to "spell out any allegation of alleged unfairness" in the interview
• the heavy reliance placed by the broadcaster on the interview as showing that it had fulfilled its responsibility to provide a fair chance to respond to the allegations in the programme
• the dispute about the questions asked during the interview
• the dispute about the number and quality of interruptions during the interview
• the dispute about whether the broadcaster properly included Dr Jacobs’ responses in the programme.

[17]   MOH noted that if its complaint was with Television New Zealand Ltd, the Ministry would be entitled to a copy of the interview under the Privacy and Official Information Acts. This principle had been established since TVNZ v Ombudsmen in 1992, it said, and did not seem to have unduly affected TVNZ’s news operation. It wrote:

TV3 plainly do not want a precedent established relating to disclosure. It is submitted that the BSA has exercised its powers to order disclosure sparingly enough that this cannot be a serious concern.

[18]   Finally, MOH submitted that a transcript of the field tape would not be sufficient, as the "nuances of the interview" would not necessarily be reflected in a transcript.

Authority’s Ruling

[19]   At the outset, the Authority notes MOH’s comment that there are two tapes. It understands that these tapes are of the same interview, but were simply recorded on two different cameras. The Authority is satisfied with the one field tape supplied to it by the broadcaster.

[20]   The Authority has given careful consideration to the arguments advanced by the parties in respect of whether MOH should be given access to the field tape of Dr Jacobs’ interview, and, as it informed CanWest on 5 September before the broadcaster made submissions on the present issue, it has conducted a preliminary assessment of the programme and the complaint. It finds the Ministry’s arguments in respect of natural justice to be compelling, and it notes that the weight of legal precedent supports the Ministry’s submissions.

[21]   The Authority acknowledges CanWest’s argument about the general principles of editorial independence and integrity. However, it is of the view that MOH should be given access to the field tape in order to complete its submissions on balance and fairness.

[22]   The Authority observes, however, that the Ministry should only use the material in the field tape to support the points it has already made in its formal complaint; it is not able to introduce new points of argument at this stage.

[23]   The Authority requires the Ministry’s submissions and the return of the field tape by 5pm on Friday 9 November 2007. The Authority advises CanWest that it intends to make the field tape available to MOH on Wednesday 31 October 2007.

Order

Pursuant to section 12 of the Broadcasting Act 1989 and section 4C of the Commissions of Inquiry Act 1908, the Authority shall supply to the Ministry of Health a copy of the field tape which was made available to the Authority by CanWest TVWorks Ltd in compliance with the order in Decision No. ID2007-012. The tape shall be supplied to the Ministry on Wednesday 31 October 2007.

The field tape is supplied to the Ministry of Health to assist it in making a final submission on the complaint about the broadcast of Let Us Spray on 23 October 2006. The Authority requires the final submission and the return of the field tape by 5pm on Friday 9 November 2007.

Signed for and on behalf of the Authority

Joanne Morris
Chair
26 October 2007