BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

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Summary

The activities in New Zealand of forestry company Ernslaw One Ltd were examined

in a two part item broadcast on Frontline between 6.30–7.30pm on Sunday 30

October 1994. The item also reported criticism of the company's Malaysian

principals' logging companies in Papua New Guinea and Sarawak.

Ernslaw One Ltd's agents complained to Television New Zealand Ltd, the

broadcaster, that the item breached the broadcasting standards in that it presented an

unbalanced view of the company's business activities in New Zealand. Moreover, the

company's agents complained that the company had received an inadequate briefing

from Frontline as to the thrust of the programme and that information prejudicial to

the company had been supplied to a newspaper for use in a preview.

Explaining that the newspaper item was not a matter of broadcasting standards and

maintaining that the company had neither been ambushed by the broadcaster nor that

the item was unbalanced, TVNZ declined to uphold the complaint.

Dissatisfied with TVNZ's decision on the complaint about balance and the inadequate

briefing that it had received, the company's solicitors referred the complaint to the

Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989 on the

grounds that the item was unbalanced and untruthful, that it had involved a deceptive

programme practice and that the company had been treated unfairly.

For the reasons below, the Authority upheld aspects of the complaint that the

programme breached the requirement for balance, impartiality and fairness.

Decision

The members of the Authority have viewed the item complained about and have read

the correspondence (summarised in the Appendix). As is its practice, the Authority

has determined the complaint without a formal hearing.

Introduction

On behalf of the Tauranga-based forestry company Ernslaw One Ltd, The Marketing

Group in Wellington complained to TVNZ about a two part item, "The Tiongs",

broadcast on Frontline. The complainant alleged that the broadcast breached

standards G6 and G7 of the Television Code of Broadcasting Practice.

When TVNZ declined to uphold the complaint, Ernslaw's solicitors (Glaister Ennor

of Auckland) referred the complaint to the Authority for review. The referral

contained considerable elaboration of the points made in the complaint and, in

addition, alleged breaches of s.4(1)(d) of the Broadcasting Act 1989 and standards G1,

G4, G6, G7, G19 and G20 of the Television Code.

The Authority sought TVNZ's response to the referral and it replied that the referral

appeared to be a new complaint and suggested that the Authority ask the complainant

to recast the referral of its complaint in terms of its original complaint.

Because the Authority's statutory function under the Broadcasting Act 1989 is to

accept referrals which "seek an investigation and review of the broadcaster's action or

decision as the case may be" (s.7(3)), it is not able to accept new aspects of a

complaint when a complainant requests the review of a broadcaster's decision.

However, in applying the provision, the Authority has often found that the extra

points raised in the referral amount to an elaboration of points previously raised rather

than the introduction of a new point. Nevertheless, while the Authority has accepted

elaborations, explanations and clarifications of points already made, it has only

accepted the introduction of new standards in the referral on rare occasions. A referral

may expand on points which the broadcaster has considered; it may not introduce

alleged breaches of standards not previously assessed by the broadcaster when

responding to the initial complaint.

The Authority examined the referral received from the complainant's solicitors

pursuant to this practice and decided that all the points except one raised matters

which could be assessed under standards G6 and G7 and were all (apart from the same

one) understandable amplifications of the matters raised in the original complaint.

Accordingly, the Authority declined TVNZ's suggestion that the complainant be

asked to recast its referral in terms of its original complaint. It again sought TVNZ's

response to the points raised in the referral except on the matter not previously raised.

That aspect of the complaint alleged a breach of standard G19 in that it said that

TVNZ, when editing the item, had distorted the views of the people interviewed.

TVNZ regarded that allegation as serious as it questioned the integrity of a

professional media organisation. Therefore, although acknowledging that a response

was not necessary, it replied by rejecting the allegation as "totally untrue and

mischievous".

In summary, the Authority has reviewed the broadcaster's decision on the complaint

as outlined in the complainant's solicitors' letter of referral under standards G6, G7

and G19 of the Television Code of Broadcasting Practice.

The Complaint

The letter of complaint from The Marketing Group to TVNZ was overtaken by the

solicitor's letter of referral. Rather than precis the original letter in detail, the

Authority has recorded the summary contained in the letter of referral. The referral

stated that the points made in the original complaint came under the following three

headings:

1.  TVNZ's failure to make an effort to include the point of view of Ernslaw

     and other objective third parties which were offered to the programme and

     not taken up by the producer or the reporter.

2.  TVNZ's failure to give proper briefings/explanations as to the reasons for

     seeking the interviews and comments from company officers of Ernslaw.

3.  The prejudicial nature of the trailers to the programme and the use of the

     Sunday News preview. It is alleged that TVNZ gave information to

     Sunday News to complete a preview that was prejudicial to Ernslaw as

     the trailers for the content of the Frontline programme.

TVNZ had explained in its response to The Marketing Group that press items noted

in point three did not raise questions of broadcasting standards and the matter was not

referred to the Authority.

The referral listed six reasons why the complainant was dissatisfied with TVNZ's

decision, which included being misled as to the true nature of the programme, that Mr

Song, the Managing Director of Ernslaw in New Zealand, was unfairly questioned as if

he represented the Tiong family in New Zealand, and that Ernslaw was not advised of

TVNZ's visit to Sarawak and thus was unable to seek comment from its principals on

the matters raised by the trip.

These matters are central to the referral and will be addressed on several occasions as

the aspects of the complaint are explained.

The complainant's solicitors then listed six "Heads of Complaint". They were:

1.  Ernslaw was deliberately misled by TVNZ into believing that the

     Frontline Programme was to focus on the Ernslaw operation in New

     Zealand and would not be closely linked to the overseas operation of

     Ernslaw's principals.

2.  TVNZ misled the viewer into believing the activities of Ernslaw in New

     Zealand are so recent that they should be judged by the alleged operations

     of its principals overseas rather than by detailing Ernslaw's performance

     in New Zealand during the last four years.

3.  TVNZ failed to show balance, impartiality and fairness in dealing with the

     issues related to Ernslaw's Whangapoua Forest and Matakana Island

     operations.

4.  TVNZ did not give sufficient opportunity on air for Ernslaw to comment

     specifically on its New Zealand operation and to answer its opponents

     about its New Zealand operations.

5.  TVNZ used the opinions of opponents to the Tiong Family, Rimbunan

     Hijau and Ernslaw and then presented them as facts to the viewers of the

     Frontline Programme.

6.  The editing of the programme was prejudicial to and biased against

             Ernslaw.

Each point was dealt with briefly and the referral recorded that the details were

contained in a later section of the letter. The referral contained the following summary

of the "Heads of Complaint".

TVNZ presented a programme which contained a strong negative bias

responsible for predetermining viewer response and conclusions. The natural

conclusion was a negative view of Ernslaw and its New Zealand operations, a

conclusion drawn by viewers who had not been made aware of the facts and

issues surrounding the subject matter in a fair and balanced presentation.

Having included a list of the standards allegedly breached (noted in the Introduction),

the solicitors then listed specific examples of the item said to contravene the noted

standards. In view of the Authority's decision to assess the complaint only under

standards G6, G7 and G19, this section of the decision will not refer to the standards

cited. (The full information is included in the Appendix). The Authority has

numbered the specific examples to assist in matching them later to TVNZ's response.

1.         Unfair Allocation of Air Time

The programme was unbalanced, the complainant contended, as the air time given to

Ernslaw, its parent company Rimbunan Hijau, and the owners of the parent company,

the Tiong family, was significantly less than those opposed to them.

2.         Emotive Use of Language

Negative language was used, it was said, to describe the Tiong family's investments in

New Zealand. The use of such terms as "alarm bells" and "tentacles" indicated a

predetermined bias against Ernslaw.

3.         Language Used by Presenter

The complaint argued that the use in the presenter's introduction of such terms as

"those Asian loggers" and the "voracious stripping of the forests" involved

unsubstantiated opinion and as it was unfair, it deliberately created a negative impact

for the viewer before the facts could be assessed.

4.         Editing of Material

Not only was alarmist music used, the complaint contended, wasteland images were

used for dramatic impact rather than veracity. It was unfair and unbalanced and the

item did not acknowledge whether the pictures shown were of Rimbunan Hijau

operations.

5.         Detailing of Ernslaw Investments

Arguing that the item used a sinister metaphor to introduce the topic - "the tentacles

of the Tiong timber empire", the complaint alleged that colonisation by aggressive

Asian business people was implied. Moreover, the off-camera briefing by TVNZ had

placed relevance on Ernslaw's investments in New Zealand but the item did not deal

with its investment philosophy.

6.         Horton Comment on Ernslaw investment in New Zealand

Mr Horton of the Campaign Against Foreign Control of Aotearoa (CAFCA), the

complainant recorded, gave unqualified and unsubstantiated opinion despite TVNZ

having been supplied by Ernslaw with factual material which would have balanced Mr

Horton's comments.

7.         Material Supplied by Ernslaw but not used by TVNZ

The complaint noted that TVNZ had been supplied with, but had either not used or

had made only minimal use of: – information about Ernslaw's shareholder philosophy;

the long-term investment philosophy (eg Douglas Fir planting); the difference between

harvesting pine forest in New Zealand and logging rain forests in Asia; Ernslaw's

infrastructure investment practice and philosophy of partnership; and that Ernslaw

planted four hectares of trees for each hectare harvested.

8.         Interview with Mr Thomas Song

Despite Mr Song's specific comment to TVNZ to the contrary while the programme

was being prepared, he was described in the item as "Rimbunan Hijau's representative

in New Zealand". The use of the word "representative", the complaint continued,

was a deliberate attempt to use Mr Song as a bridge and as the link between the two

companies.

The complaint noted that Mr Song was then asked about the allegations of bribery and

corruption in Papua New Guinea which presupposed that the allegations were

proven, that they involved Rimbunan Hijau and the Tiong family and that Mr Song

had sufficient knowledge to be in a position to comment. The complaint stated:

Ernslaw contends that the treatment of Mr Song in the interview was unfair.

Mr Song repeatedly made the point that he was unable to comment on the

overseas operations of the Tiong family or Rimbunan Hijau. The unfair

treatment resulted in a programme presented by TVNZ that took the answers

given by Mr Song in good faith and edited them so they became responses to

completely different questions which TVNZ dubbed into the finished version of

the programme.

9.         Re-introduction of Mr Horton

The item, the complaint maintained, focussed on the opinion of one person who used

emotive language to which Ernslaw was not given the opportunity to present a factual

reply.

10.       Sarawak Segment

Noting that the complaints under this heading focussed on the programme's segment

which dealt with the Tiong family and Rimbunan Hijau operations in Sarawak, the

referral said:

The claim that the programme was to examine the New Zealand connection to

the Sarawak rain forest destruction was a deliberate attempt by TVNZ to link

the New Zealand and Malaysian operations. This even after TVNZ was

advised by Ernslaw that the New Zealand, Malaysian and Papua New Guinea

operations were separate from each other.

The programme had been incorrect when it said that Chinese interests controlled all

the timber as the majority of timber interests were held by the indigenous people of

Malaysia. The use of the phrase "priceless tropical timber" was emotive, opinionated

and, indeed, literally meaningless and, moreover, the contention that the logs would

end up as chopsticks and toothpicks in Japan was incorrect.

Subsequent research by Ernslaw, the complaint continued, disclosed that logging in

Sarawak was controlled and that the concessions were legally obtained. Moreover, the

programme's reference to police and immigration officers gave the impression,

incorrectly, that they were controlled by logging interests generally and Rimbunan

Hijau in particular.

11.       Examination of Ernslaw, the Whangapoua Operations and Objections to the

Operations

The complaint referred to the programme's "negative theme" which again had

attempted to link the New Zealand operations with those in Malaysia and Papua New

Guinea. The programme's reporter had referred to "hardball" tactics as evidence of

the link.

The Whangapoua operations were criticised by Mr Bibby, a neighbouring dairy

farmer, and inadequately offset by a brief comment from Mr Song. The complaint

pointed out that Mr Bibby's concerns had been answered in an interview TVNZ had

recorded with Ernslaw's North Island Forestry Manager, Mr Johnston. But, the

complaint argued:

... TVNZ chose not to use it because this would not fit the story line and also

presented a Kiwi face representing Ernslaw management which also would not

suit the story line.

Ernslaw's operations had been presented incorrectly to suggest past problems could

recur whereas now the logging operations were governed by the Resource

Management Act and used guidelines set by the National Institute of Water and

Atmospheric Research (NIWA).

12.       Matakana Issue

This aspect of the complaint began:

The information regarding Ernslaw's involvement in the Matakana Forest was

presented in a deliberately prejudicial way to highlight the controversy of the

issue and to highlight Ernslaw's involvement in that controversy.

It was alleged that Ernslaw had deliberately circumvented the law whereas a High

Court judge had granted an interim injunction only on the basis that there was an

arguable case to be tried at a later date. The complainant continued:

Ernslaw contends that the detailed and complex facts surrounding both the

Matakana land purchase and the Matakana logging concession were truncated

and shuffled around to fit the predetermined bias of the programme as a whole,

namely that the alleged Tiong and Rimbunan Hijau methods of operation in

Malaysia and Papua New Guinea were being adopted in New Zealand and that

such operations were bordering on the illegal and were being undertaken at the

expense of New Zealand cultural and societal values.

In addition, the sale by Ernslaw of all its Matakana interests to local Maori at much

less than its true value was not mentioned.

By way of conclusion to its complaint, Ernslaw stated that it had suffered significant

embarrassment and loss of reputation because of the broadcast and, by way of relief,

sought a number of broadcast and written apologies, compensation and costs.

The Broadcaster's Response to the Complaint

TVNZ responded in some detail to the initial complaint made on Ernslaw's behalf by

The Marketing Group and to the specific points made by Ernslaw's solicitors in the

referral. Consequently, this section of the decision summarises both replies.

In response to the initial complaint, TVNZ made the following observations:

... the story told on "Frontline", simply stated, was that the Tiong family – who

are the subject of widespread allegations that their logging operations have

despoiled irreplaceable rain forest in Southeast Asia – have substantial

investments in New Zealand.

This was ... a valid story to be telling and clearly one that was in the public

interest. It is an important role of the news media to alert the public to the

presence in New Zealand of a family linked to apparently well-founded

allegations about the exploitation of natural resources.

It denied that the Frontline team of two experienced journalists was overly influenced

by the opposition Democratic Action Party in Malaysia.

As for Ernslaw in New Zealand, TVNZ added, every effort had been made to include

significant points of view and the company's commitment and adherence to

environmental practices were points made by Mr Song. The programme had referred

to the company's policy of planting new trees and that it was dealing with pine

forests in New Zealand – rather than the rain forests in Papua New Guinea and

Sarawak. There was also reference to the number of New Zealanders employed by

Ernslaw (300) and its investments were outlined.

As for the Tiong family activities abroad, TVNZ wrote:

In seeking comment about the Tiongs activities abroad, the "Frontline" team

were assured by senior personnel at Ernslaw One that they represent the Tiongs

in New Zealand. It was an assurance made without qualification. However,

they made the decision not to answer questions about the operations of their

principals in Sarawak and Papua New Guinea. "Frontline" offered them the

option of passing on to their principals the questions raised by the "Frontline"

team's visit to Sarawak – but that proposal received no response from Ernslaw

One.

TVNZ denied that the company had been misled as to the programme's direction and

listed the contact between the company's representatives and its journalists. The

briefing before the interview with Mr Song had referred to the destruction of the rain

forests in Papua New Guinea and Sarawak, the allegation of bribery and corruption

there and the concerns about silting at Whangapoua and the purchase of Matakana

Island.

TVNZ did not accept the allegation that Frontline had adopted unquestioningly the

premise of the ABC Four Corners programme on the milling of the rain forests as it

had questioned the Four Corners staff and had undertaken its own research. It

concluded on this point:

Given that this was an investigative report, requiring delicacy and a good deal of

undercover work in order to provide New Zealand viewers with an accurate

picture, the committee believed the approaches made by "Frontline" were at all

times proper.

The programme was, TVNZ wrote, "a cautionary tale".

With reference to some specific points in the original letter of complaint TVNZ said;

first, that dairy farmer Paul Bibby was not a lone anti-forestry voice but chaired a

local action committee; secondly, that the High Court's decision that Ernslaw had

intended to circumvent legal controls on land sales was evidence of "hardball"; thirdly,

that the blockade on Matakana was directed not just at ITT Rayonier but at that

company and Ernslaw; fourthly, that Murray Horton of CAFCA spoke with

authority on the area about which he was interviewed; and fifthly, that an opposition

politician in Malaysia was specifically challenged as to the extent that his views

lacked objectivity because of his political affiliations.

In its response to the referral:

TVNZ categorically denies that it deliberately misled Ernslaw One Limited

about the focus of the "Frontline" programme. Clearly the complainant has

concerns about the references to Papua New Guinea and Sarawak. These issues

were thoroughly canvassed with Ernslaw One during the preparation of the

programme.

It acknowledged the transcript of the briefing supplied by the complaint but added:

Not revealed on the tape is a conversation [TVNZ's reporter] had with Mr Song

while the camera and lighting equipment were being set up in preparation for the

interview. In that conversation, the reporter went through the entire list of

questions he was proposing to ask Mr Song. It is the reporter's recollection

that he went through the list not once, but twice.

TVNZ also reported that opportunities to interrupt the interview – not usually given –

were offered Mr Song in view of his less than perfect command of English, observing:

In the event, Mr Song handled the interview with ease, and did not baulk at any

of the questions.

TVNZ added:

We also think it pertinent to tell the Authority that while the lights and cameras

were being removed, Mr Song chatted amicably with the reporter, seemingly

pleased with this performance and not providing any indication of misgivings

concerning the question line.

TVNZ's reporter says that he and Mr Song parted on the understanding that

should Mr Song acquire relevant comment from his principals in Sarawak,

"Frontline" would be happy to incorporate them in the finished programme.

It then dealt with the specific issues raised in the referral.

1.         Unfair Allocation of Time

Disputing the claim that balance was achieved by stopwatch journalism, TVNZ said

the Sarawak segment was filmed under difficult conditions. The New Zealand

segment gave Ernslaw's viewpoint fairly and, TVNZ reported:

... "Frontline" made considerable efforts to obtain a response from Rimbunan

Hijau and the Tiong family.

2.         Emotive use of Language

Acknowledging that the language was colourful at times, TVNZ said it was accurate

and not emotive.

3.         Use of Language in the Presenter's Introduction

TVNZ maintained that the story was accurate and thoroughly researched and as it was

supported by the item itself, it was not unsubstantiated fact.

4.         Editing of Material

Denying that the music was alarmist but simply reflected the slow and measured

destruction of the rain forest, TVNZ said the scenes of the logging operations in

Sarawak were fair and reasonable in the context of the story. As for the "voracious

timber tycoons" comment, TVNZ said that Rimbunan Hijau and other Malaysian

logging companies had felled six million hectares of timber in Papua New Guinea in the

last few years.

5.         Detailing of Ernslaw Investment

That had been dealt with in its response to the initial complaint when, it was recorded,

Ernslaw's range of investments were included in the broadcast.

6.         Horton Comment on Ernslaw Investment

That had also been dealt with when Mr Horton's acknowledged expertise in the area

was explained.

7.         Material Supplied by Ernslaw

As television investigative reporting involved selecting the specially relevant material

from all the material collected, TVNZ said the information provided by the

complainant was valuable background knowledge but not directly relevant. TVNZ

added:

Even when "Frontline" gives Ernslaw credit for its achievements, the programme

is accused by the complainant of giving only "a passing reference". We believe

the complainant has not grasped the fact that television scripting requires

economy of words, and crisp sentencing. It is an altogether different skill from

that employed in magazine or newspaper investigative work where the wordage

available is both considerably greater and not required to be linked to associated

visuals.

8.         Interview with Mr Song

Mr Song, TVNZ wrote, had had a full briefing and had not been disturbed by the

question line. It stood by its handling of the interview.

9.         Re-introduction of Mr Horton

See 6

10.       Sarawak Segments

Explaining that two senior Frontline staff had gone to Sarawak to check the situation

for themselves, TVNZ said what was reported was correct. It added:

The report carried to New Zealand viewers a cautionary message, showing what

had happened in Sarawak and (by implication) what could happen elsewhere.

Respectfully we remind the Authority of the public's right to know – a vital

principle in any democracy claiming to have a free and unfettered press.

11.       Examination of Ernslaw etc

This had been dealt with earlier.

12.       Matakana Issue

This had also been discussed in its previous response.

Arguing that the programme had not breached the standards, in its conclusion of its

report to the Authority, TVNZ made the following observations:

The complainants have produced a referral in which they have introduced many

matters not raised in their original complaint. They have drawn inferences and

made accusations against the "Frontline" programme and production team which

have absolutely no foundation.

Despite the voluminous collection of transcriptions, memoranda, press clippings

etc the complainants have failed to produce any fresh evidence to show that

they were treated unfairly, or that the item lacked balance as far as Ernslaw One

is concerned.

They attempt to dismiss as inconsequential or opinionated those who

participated and criticised the logging operations both overseas and in New

Zealand.

We repeat again, the programme tackled matters of relevance to the people of

New Zealand. The New Zealand public had the right to know.

Because of the covert nature of the visit to Sarawak it was not possible to obtain

opposing comment from Malaysian ministers and officials. "Frontline"

acknowledged that in closing remarks by the presenter Susan Wood. The local

representative in New Zealand, Mr Song, was provided with the opportunity to

put that side of the story but he declined.

Further Correspondence

The complainant's solicitors disputed some of the points made by TVNZ. For

example, they said that there were no significant discussions off camera not included

in the transcript sent to the Authority. While the camera was being set up, Mr Song

was in his office and the company's secretary had acted as go-between the crew and

Mr Song. In addition, they said, Mr Song was neither told of the visit to Sarawak nor

the extent that the item would focus on the activities of the Tiong family overseas.

Had he been informed, they added, he could have made someone available to comment

on those matters.

Mr Song had not stopped the interview when he felt uncomfortable as to questions

about the Tiong family as he did not want the interruption to be broadcast and

possibly "to reflect badly on the Tiongs".

The solicitors also included the following comment:

Mr Song denies that the reporter gave him the understanding that comment from

his principals in Sarawak would be incorporated into the finished programme.

Both Mr Song and the writer deny that [TVNZ's staff] requested comment

from the principals in Sarawak. In any event such a comment would have been

inconsistent with their representation that the major thrust of the programme

was to do with Whangapoua and Matakana Island whereas in fact the major

thrust of the programme turned out to be the activities of the Tiong family

overseas.

One specific aspect of the transcript referring to fast tracking was drawn to the

Authority's attention which, the complainant stated was an illustration of editing

which distorted the original interview:

... so that Mr Song seems to be deliberately side stepping the question leaving

the viewer with the inference that the interviewee is a dishonest person.

It was incorrect, the letter stated, to report that Malaysian timber companies had

felled six million hectares of timber in Papua New Guinea. Whereas the statistics

recorded that six million cubic metres of logs had been exported, that would have come

from a far smaller area than the size alleged.

The complainant's solicitors came back to what it considered to be a central issue:

The briefing was friendly. TVNZ describes it as detailed. In some ways it was

detailed but it however did lack the most important detail; the fact that the

Frontline team had been in Sarawak and that the programme and the interview

about to be filmed was a follow-on to the Foreign Correspondent programme

implicating Ernslaw by association in allegations of broad ranging negativity.

Had Mr Song known this fact he would have most definitely been disturbed by

the question line. In ignorance of the story context and the way in which his

answers were to be used he simply answered as honestly and openly as he

could, feeling that he and his company had absolutely nothing to hide.

In conclusion, the company stated:

In summary, Mr Song trusted TVNZ to play fair in return for his openness in

allowing them to interview him. He feels that such openness and honesty has

been betrayed by TVNZ.

TVNZ had sufficient on camera material to broadcast positive aspects of

Ernslaw's operation but that such positive material was not relevant to the

story which was being told and accordingly was not used.

The complainant company later provided the Authority with some comment from

Datuk (Sir) Leo Chai, the Director of Forests in Sarawak.

That letter stated that the opposition Malaysian politicians' comments in the item

that there would be no trees to log in ten years, were wrong. Production had been set

at a sustainable level since 1992. Some other comments were contested and the letter

commented:

The stage managed video designed to discredit Sarawak, the Tiongs and their

companies overseas especially in Papua New Guinea and New Zealand is as

extremely unfair and mischievous as it is full of inaccuracies, and false

information. It is unfortunate however many viewers in New Zealand who have

no knowledge of the truth or have any experience of tropical forests and Asian

culture will tend to believe what they viewed in the video. Those of us who had

studied in Universities in New Zealand, Australia, United Kingdom and North

America are only too familiar with such unethical tactics used by NGOs from

such countries to belittle developing nations like Malaysia who are becoming

more successful in international trade than their own countries. Their

destruction of their indigenous forest and treatment of their own indigenous

races are not only historical records but serve as a testimony to their perceived

supremacy of their own race. Many of them still could not accept that Asians

can be just as intelligent, capable and honest like themselves.

The letter, the complainant's solicitors commented, indicated how inappropriate it

was for the Frontline team to interview politicians from a minority party rather than

seek comment from the Government.

Both the complainant and TVNZ have insisted on the accuracy of its submissions in

the subsequent correspondence. TVNZ supplied the Authority with some press

clippings referring critically to the Tiong family operations in Sarawak and Papua

New Guinea, and describing Ernslaw's operations in New Zealand. The complainant

argued that it was procedurally unfair for the Authority to consider the material

supplied so late in the process.

The Authority's Findings

(i)         The Appropriate Standards

The complainant – both in the original complaint and in the referral – maintained that

standard G7 was contravened when it complained about TVNZ's approach to the

company. It was also raised in other situations such as referring to the "emotive"

language used in the item or arguing that the company was inadequately briefed about

the item's scope or the visit to Sarawak. It was never cited alone but usually in

conjunction with standard G6 and, on occasions, with standards G1 and G4.

Standard G7 requires broadcasters:

            G7        To avoid the use of any deceptive programme practice which takes

                        advantage of the confidence viewers have in the integrity of broadcasting.

The Authority has considered the phrase "deceptive programme practice" in previous

decisions and has ruled that it is confined to technical practices. For example, a breach

of standard G7 occurred, the Authority ruled on one occasion (No: 27/93, 18.3.93),

when a visual was incorrectly captioned "an amateur video" when, in fact, the pictures

had been taken by a company stringer.

The standard has been cited in this complaint because the broadcaster's practices in its

dealings with the complainant had, allegedly, been less than completely honest or had

been deceptive. In other words, the aspects of the complaint made under standard G7

claimed that Ernslaw One Ltd had not been treated fairly.

Because fairness is a requirement raised in standard G6, the Authority has subsumed

all the aspects of the complaint which refer to standard G7 as, in fact, alleging a

contravention of standard G6.

In summary, standards G6 and G7 were raised by the complainant in its original

complaint to TVNZ. Because of its inapplicability, the Authority has subsumed the

standard G7 aspects under standard G6. Standards G1, G4, G6, G7, G19 and G20,

and s.4(1)(d) of the Broadcasting Act, were cited by the complainant when it referred

the complaint to the Authority. As explained above in the section headed

Introduction, under the legislation the Authority can only accept referrals of

standards raised in the initial complaint. Accordingly, it subsumed all the matters

except one under standard G6. TVNZ in fact responded to the one matter which the

Authority did not accept as a G6 matter – the complaint about editing under standard

G19 – and, consequently the Authority will assess that aspect.

Accordingly, the Authority will assess the complaint from Ernslaw One Ltd about the

two part Frontline item, "The Tiongs", under standards G6 and G19. Standard G6

requires broadcasters:

            G6        To show balance, impartiality and fairness in dealing with political

                         matters, current affairs and all questions of a controversial nature.

Standard G19 reads:

            G19      Care must be taken in the editing of programme material to ensure that
                       the extracts used are a true reflection and not a distortion of the
                       original event

or the overall views expressed.

(ii)        Standard G19 – Editing not to distort

Complaints which allege a breach of this standard are usually very difficult to

determine. The complainant has one recollection of the interview which does not

correspond with the item which is screened. The broadcaster maintains editing of the

material collected is essential but insists that the aspect screened, together with the

comments broadcast, was a fair summary. The situation is complicated by the

broadcaster's refusal in most cases to make available to the aggrieved party either the

full interview which was taped or a transcript of it.

However, those problems were considerably reduced on this occasion.

The complainant, Ernslaw One Ltd, with TVNZ's knowledge, recorded both the

briefing between TVNZ and its representatives, and the full interview which was

recorded on video tape. In addition, it supplied the Authority with a transcript of the

broadcast to allow the Authority to compare material taped with the material

broadcast.

Those transcripts have been made available to TVNZ and while it has argued that the

transcript of the briefing was not complete, it has not contested the accuracy of the

taped interview and the transcript of the item which was broadcast. TVNZ argued

strongly that the editing had not distorted the views expressed.

The Authority accepted that a broadcaster will edit material collected as, almost

inevitably, considerably more will be collected on tape than could ever be screened. In

assessing the complaint under standard G19, there were two aspects of the editing

which the Authority examined closely and the second was referred to by the

complainant's solicitors as an example of editing which had breached the standards.

In the first instance examined by the Authority, the reporter during the programme

which was broadcast asked Mr Song the following question:

Given the reputation of the Tiongs of Rimbunan Hijau with whom you are

closely associated, can New Zealanders trust Ernslaw One?

Mr Song was seen to reply:

I don't think there would be any problems with the majority of the New

Zealanders ... . There will always be a minority who believe allegations,

rumours and all those unfounded facts. But in the general public I don't believe

the majority of New Zealanders would have anything to fear.

During the interview, which was later edited for broadcast, the following question was

actually asked:

Can I ask Thomas, given the reputation of your principal in Malaysia, the

Tiongs can New Zealanders trust you in New Zealand's operation.

To that question (which was similar to the question which was screened), Mr Song

actually replied:

Er, in my opinion, yes. You only need to examine what we did in New Zealand,

the Ernslaw's operation is entirely in the long-term nature, entirely long-term.

And to that effect we have demonstrated many many times that we do like to

work in New Zealand for the long-term benefit of everybody, of course that

includes ourselves. And in the South Island, we have decided unprecedentedly

in New Zealand to establish a Douglas fir forest. And that would take 60 years

to mature. And as commercial enterprise when you can't expect a cashflow 60

years after investing it, that is no other suggestion other than that we are having

a long-term benefit of New Zealand at heart as well, being desirable to be part of

it. And we have to that effect we actually also set up a joint venture nursery in

Oamaru with another New Zealand company to make sure that we indeed have

the seedlings available for that. And a lot of our investments in New Zealand

you can see that they are all long-term in nature. The Port of Tauranga shares,

the Southland port shares, these are infrastructure shares. There are no

excitement in those shares. The only thing we invest in them is that we want to

in, be part of the long-term. They are all controlled by the New Zealand regional

councils, and therefore as a foreigner we would not be able to manipulate those

shares whatsoever in term of management or anything else. So we just want to

be a partner investing in New Zealand for the long-term and the company is

100% Kiwi managed. The management team are all residing in New Zealand.

During the broadcast, some of that information was given, principally by way of the

reporter's commentary. The editing had involved transposing for the broadcast, an

answer given for one question to another. The answer which was broadcast had in

fact been given to the following question posed during the interview:

Given those allegations [attempted bribery of politicians in Papua New Guinea]

would you accept that it's difficult, or would be difficult for New Zealanders to

have complete confidence in your company's operation in New Zealand, given

that background?

The Authority, in deciding the alleged breach of standard G19, was required to decide

whether the editing amounted to distortion. A majority of the Authority decided that

standard G19 had not been breached on this occasion. Although the answer to the

question put was not screened, the majority decided that the second question asked –

to which the answer which was broadcast was actually given – was sufficiently similar

to the question which was screened that the standard was not contravened. While

both the complainant and the Authority are understandably concerned at this practice,

a majority of the Authority felt that it could not say that what had occurred on this

occasion amounted to distortion.

A minority disagreed. It considered that as the answer which was broadcast was given

to a question which referred specifically to bribery, the screened question – which

dealt with reputation – and the answer which dismissed the allegations as unfounded,

involved a transposition which was unfair and distorted the interview to the extent

that it breached standard G19.

Nevertheless, in view of its concerns the majority accepted that there had been a

degree of unfairness, although not to the extent that it amounted to a transgression of

the standard, and it was a matter to be considered when determining the complaint

about the programme overall under standard G6.

The second example examined involved the following question and answer from the

broadcast.

            And what of the claim that Ernslaw is fast-tracking logging at Whangapoua?

            Thomas Song:

I believe our operation is of the highest standard, as far as the environment is

concerned. And we have adopted a standard, Er .. a set of guideline that ensure

that our people perform to the highest standard as far as the environment is

concerned.

During the unedited interview, that response had been his answer to this question:

Thomas, could I ask you first of all, it has been suggested that because of the

large scale nature of the logging of Whangapoua, it has been a cause of

sedimentation siltation of the neighbouring farm land, what do you say of that?

To the question on fast-tracking contained in the broadcast, he had replied during the

interview:

I think the logging rate in Whangapoua is still much below the sustainable level

and we are adhering to a cutting regime which is of a higher age class than the

industrial average. Basically in terms of logging we are cutting an area much

smaller than normally would be the case commercially.

On this aspect of the complaint about distortion through editing, a majority of the

Authority again decided that, despite a slight element of unfairness, standard G19 had

not been contravened to the extent of distortion. The unfairness aspect, the Authority

decided, was another matter to be taken into account in its assessment of the item

overall dealt with in (vi) below.

A minority again disagreed. During the interview, Mr Song had given a specific

answer to a specific question on fast-track logging. During the broadcast, his answer

was in general terms which, the minority believed, suggested evasiveness on Mr

Song's part and thus the editing had breached standard G19.

Thus, on the alleged contraventions of standard G19, a majority of the Authority

concluded that there had not been a breach of the Code.

(iii)       Standard G6 – Balance, Impartiality and Fairness – General Approach

As explained above, all matters raised – except the complaint about editing – are being

assessed as an alleged breach of standard G6. The initial complaint raised some

specific matters, as alleged breaches of that standard, and although not all were

repeated in the referral, the number of specific breaches alleged increased in the referral

because of additional matters raised when the complaint was elaborated on and

clarified.

The complaint also raised some general points about TVNZ's dealings with the

complainant in its preparation of the broadcast. Those matters will be considered

below in a section headed (v) Standard G6 – Interaction between Ernslaw and TVNZ.

TVNZ described the programme as "a cautionary tale". It pointed out that it was the

media's job to examine the operations of a company in New Zealand when its

operations overseas had been criticised.

In questioning whether the criticisms applicable to the overseas operations were also

applicable to the New Zealand operations, the Authority notes that under standard

G6 the broadcaster is required to be balanced, impartial and fair. "Guilt by

association", to use a phrase raised by the complainant, does not in itself prove guilt.

By describing the item, as "a cautionary tale", TVNZ maintained that it had not

attempted to convict by innuendo alone. Before guilt can be determined, the

Authority noted, the broadcaster must present the evidence impartially. Because of

the potential to convict in this manner, impartiality was an aspect of the programme

which the Authority felt the broadcast had to comply with strictly. This point is

considered further below in section (vi) Standard G6 – overall.

The Authority is not in a position to determine whether Frontline's criticisms of

Rimbunan Hijau in Papua New Guinea or Sarawak were accurate either overall or in

detail. Indeed it suspects that at least two details were not totally correct – that the

timber milled in Sarawak is used for chopsticks and toothpicks in Japan and that six

million hectares of rain forest have been milled recently in Papua New Guinea.

However, the details were passing, albeit negative points, contained in the item's

verbal and visual message that Rimbunan Hijau, which was owned by the wealthy

Tiong family, was involved, along with some other Malaysian timber companies, in

massive milling ("voracious" stripping) of the rain forests in Papua New Guinea and

Sarawak.

The approach used in the item should be noted here, specifically Frontline's decision

to travel to and report surreptitiously from Sarawak. The item did not give an

explanation as to why that was necessary; instead, the viewer was tacitly invited to

assume there were reasons for the decision that reflected negatively on Rimbunan

Hijau or the government there. TVNZ might well have had good reasons why an overt

trip would have been futile in gathering the range of information sought, but in the

interests of fairness the Authority considered that those reasons should have been

shared with the viewer. Such a failure to explain led to an inevitable question; whether

or not it was surprising for the police in Sarawak to keep an eye on two journalists

and crew, supposedly on holiday, who nevertheless were equipped with cameras and

other television equipment.

Although the Authority was unable to determine the accuracy and fairness of the

item's Sarawak segment, it decided nevertheless that the item left a negative

impression about Rimbunan Hijau for the above reasons. Further, it decided that the

impression was a matter to be taken into account when determining whether or not the

item overall breached standard G6. At this stage of its deliberations, the Authority

noted that the item, having created that impression, and having reported that the

Tiongs' tentacles were to be found in New Zealand in the form of Ernslaw One Ltd,

had to examine Ernslaw's activities thoroughly, fairly and impartially to ensure that

the company was not convicted through guilt by association alone.

As evidence of whether or not Ernslaw was treated impartially and fairly, the

Authority then examined the specific aspects of the complaint contained in the referral

(numbered 1–12 in the section entitled The Complaint above).

(iv)       Standard G6 – Balance, Impartiality and Fairness – The Particulars

1.         The allocation of airtime

The Authority agreed with TVNZ that the use of a stopwatch in itself is an

inadequate measure of balance. Nevertheless, taking into account the approximate

duration of comment on the New Zealand operations by the people interviewed, it

would not suggest a substantial lack of balance.

2 & 3    Emotive Use of Language

The Authority considered that the language used in the introduction and in the item,

while questionable, did not in itself amount to a breach of the standards as it referred

mainly to the activities of an overseas company which was being extensively

criticised.

4.         Editing of Material

Again the Authority considered that the dramatic music and footage, although

bordering on the melodramatic, had not breached the standards. It thought, however,

that the item could have been clarified by stating explicitly which shots in New

Zealand were of Ernslaw's operations and which were those of some other company.

5.         Detailing Ernslaw's investment

The Authority accepted that the broadcast had included a reasonably comprehensive

account of Ernslaw's investments and that the material had not been presented in a

manner principally to encourage xenophobia. According to an article in "The

Independent" dated 3 December 1993 supplied by TVNZ, at that time Ernslaw One

owned 1.8% of New Zealand's planned production pine forests. Such information

about the scale of the company's investment in New Zealand could have been useful

for the programme's context: it seems relevant that while the parent company was a

major presence in other countries, Ernslaw is a relatively minor presence in the New

Zealand context.

6.         Mr Horton's comments

His comments on two occasions on Ernslaw's investments in New Zealand, the

Authority decided, did not contravene the standards. However, the Authority

questioned the absence of any comment from an independent person in support of the

investments or indeed to comment on them in general.

7.         Material supplied by Ernslaw but not used by TVNZ

Further to its conclusion on point 6, the Authority again noted the absence of any

independent commentator in New Zealand to speak in support of Ernslaw's activities

who might provide balance.

8.         Interview with Mr Song

Contrary to the matter raised in the complaint, the Authority considered that Mr

Song's position as managing director of Ernslaw One Ltd – the New Zealand

operations of Rimbunan Hijau – was adequately explained.

9.         Reintroduction of Mr Horton

See 6

10        Sarawak segment

As noted, because of insufficient information, the Authority was not prepared to

reach a decision on whether or not the segment broadcast which dealt with Sarawak

was unfair. It would have reached a similar conclusion on the aspect of the

programme which referred to Papua New Guinea had that been referred on a similar

basis.

The original complaint emphasised the way the broadcaster had treated Ernslaw One

Ltd and that was the matter on which the Authority focussed.

11.       The Whangapoua Operations

From the transcript of the interview of the material filmed by TVNZ, the Authority

was aware that it had a considerable amount of material about Whangapoua, some of it

on film, and the names of some people outside the company who could speak about

it. Siltation had been a problem in the past and Ernslaw was attempting to prevent its

recurrence. Because a critic of the operations at Whangapoua was not countered with

some account of Ernslaw's current actions, or by expert opinion, the Authority

decided that the broadcast was unbalanced and had dealt with the issue in a way which

breached standard G6.

12.       The Matakana Issue

The Authority reached a similar decision on the way the item had dealt with the

operations on Matakana Island. Although first raised specifically in connection with

Whangapoua, TVNZ suggested that the High Court proceedings were also evidence of

Ernslaw's "hardball" tactics. To play hardball, according to the Concise Oxford, is to

pressure or coerce politically and it is a highly critical phase. In the Authority's

opinion, the use of the shelf companies is an accepted aspect of business practice and

whether or not it is successful in circumventing legislation does not amount to

"playing hardball". Accordingly, the Authority considered that the use of the term

"hardball" was not justified in the situation.

(v)        Standard G6 – Interaction between Ernslaw and TVNZ

Before applying the particulars 1–12 to its overall conclusion about TVNZ's

compliance with standard G6, the Authority assessed what was described in the

complaint as TVNZ's deceptive dealings with the complainant company.

Having read the transcript of the briefing session, the Authority agreed with the

complainant when it said that it was advised that its New Zealand operations were the

issue to be addressed in the programme. The Authority noted as well that the

company was not told of the visit to Sarawak. It also noted that Mr Song, despite his

later comment that he did not want to interrupt the interview at the time to object,

answered some questions about the parent company's operations during the

broadcast.

The Authority was then required to decide whether those matters amounted to a

breach of standard G6.

Although these issues did not refer to points in this broadcast itself, because they had

arisen during the programme's preparation, the Authority decided that they were

encompassed by the introduction to the general standards which reads:

            In the preparation and presentation of programmes ...

Generally, under these points, the Authority noted that a broadcaster is not required

to disclose its hand entirely when gathering material. At the same time, the spirit of

the standards are such as to oppose deliberate dishonesty and deceit. While TVNZ's

action on this occasion was deliberate, the Authority was of the opinion that it did not

amount to dishonesty and/or deceit.

Whether or not the item's probable emphasis on Rimbunan Hijau's overseas

operations had been explained to Ernslaw, the Authority believed that it would not

have altered the company's replies to the questions which, however, were limited, as

they excluded any reference to Sarawak. There are competing arguments but, on

balance, the Authority concluded that on this occasion there had been a breach of the

fairness requirement in standard G6.

The breach had occurred as it was apparent to the Authority from the material

supplied relating to the discussion between Ernslaw's representatives and Frontline's

staff that Ernslaw was not given the opportunity to comment on all the issues raised

in the programme. Ernslaw did not know of all the issues because it was not advised

of Frontline's trip to Sarawak and, consequently, as it was not fully aware of the

context of all the questions posed by Frontline, it was unable to respond in a way

which the fairness standard expects.

(vi)       Standard G6 – overall

The programme complained about, TVNZ wrote, was "a cautionary tale" and it

advanced the reasons why such an approach is appropriate in a current affairs item. It

is, the Authority agreed, an acceptable method of dealing with an issue provided, of

course, that a broadcast does not contravene standard G6 which requires broadcasters:

            G6        To show balance, impartiality and fairness in dealing with political

                         matters, current affairs and all questions of a controversial nature.

The cautionary tale which was broadcast on this occasion reported that Rimbunan

Hijau and its principals, the Tiong family, had been involved in the milling of rain

forests in Papua New Guinea and Sarawak. Evidence was given that the business

practices in those countries had been questioned by the political opposition. At a

general level, it was implied that the Tiong family used – possibly underhand –

political pressure to achieve their goals and, specifically, the environmental practices

of Rimbunan Hijau in those countries had been extensively criticised.

Because of these practices, the item contained the "cautionary tale" that the

operations of Ernslaw One Ltd, the Tiong family company "tentacles" in New

Zealand, should be scrutinised with extreme care or it was possible that the

"voracious" company could indulge in questionable environment and business

practices in New Zealand. Through references to the company's operations at

Whangapoua and on Makatana Island, it was suggested, the Tiong's cavalier attitude

to the environment and to business might be repeated in New Zealand – if it was not

already being repeated.

Because of the negative slant noted above in the way the broadcast had dealt with

Ernslaw One and its principals, the Authority believed that the broadcast had to

follow strictly the criteria in standard G6 if the item (as explained in section (iii)

above) was not to convict the company of guilt by association alone. In the interests

of fairness, the Authority decided, the programme makers had an obligation to advise

viewers either verbally or visually that attempts had been made to present all

significant perspectives including stressing the fact there is a major difference between

circumstances existing in New Zealand, and Papua New Guinea and Sarawak.

The Authority would also observe that there are pitfalls in comparing business

practices from one culture to another. What may be acceptable in Asia may be

unacceptable in New Zealand and vice versa. To judge a company fairly, those

differences in context have to be taken into account, which the item did not attempt to

do. Although the Authority did not agree with the complainant that TVNZ's

approach amounted to xenophobia, it appreciated the complainant's sensitivity in

light of the above comments. Because of the failure to put Rimbunan Hijau's

activities elsewhere in a local context, it followed that the negative impression created

by its Sarawak activities strengthened the case when the programme argued for caution

by New Zealanders in their dealings with Ernslaw One Ltd.

Nevertheless, rather than dealing with the appropriateness and adequacy of the

broadcast's approach to the differing business practices, the Authority focussed on

whether the broadcast had explained, in a balanced, impartial and fair way, the

operations of Ernslaw One Ltd in New Zealand. As environmental issues were the

crux of the criticism of Rimbunan Hijau in Papua New Guinea and Sarawak, the

Authority was of the view that the examination of such issues in New Zealand would

require care to ensure that the item went no further than being "a cautionary tale".

The Authority decided that the broadcast had not met that requirement for the

following reasons.

First, there was little attention given to the impact of the different business cultures in

each country. This point was noted above.

Secondly, and of central importance, there was minimal explanation of the different

environmental regimes which operate in each country. The Authority has little

knowledge of the regimes in Papua New Guinea and Sarawak but it is well-informed

about the effect and impact of the Resource Management Act in New Zealand. This

recent piece of legislation is very influential, and was referred to on a number of

occasions when TVNZ recorded the interview with Mr Song and Mr Johnston of the

company. However, the item portrayed Mr Bibby speaking of problems which had

occurred before the Resource Management Act was enacted. They were problems of

which Ernslaw One was aware and about which, as TVNZ knew, action had been

taken. However, viewers were not advised of that action and the Authority regarded

the absence of this information as a serious breach of standard G6.

Indeed, the scope of New Zealand's Resource Management Act is extensive but the

viewer was not informed of its impact on forestry (and other) companies – whether

controlled locally or overseas.

Thirdly, the Authority was unable to accept that the Matakana Island operations and

the legal disputes which emanated therefrom justified being advanced as "hardball"

tactics. Again, TVNZ had been provided with considerably more information but, the

Authority decided, had presented it in a way which contravened the requirements in

standard G6.

Finally, the Authority considered the aspect of the complaint which referred to Mr

Horton. It accepted without question that CAFCA had a perspective which TVNZ

was entitled to present. It did not, however, accept that CAFCA's perspective (in

addition to the specific concern expressed by Mr Bibby) was the only one which

should have been included and, because of the lack of balance on this point, another

aspect of the broadcast was in breach of standard G6.

Overall, as will be apparent, the Authority had considerable reservations about the

programme complained about. It seemed that TVNZ had adopted the approach that,

because of the questionable operations of the Tiong family companies in Papua New

Guinea and Sarawak, the operations of Ernslaw One in New Zealand were also

suspect. By not distinguishing between Asian business and environmental practices

and those in New Zealand, and by not including information from an independent

source about the company's operations in New Zealand, the Authority concluded that

TVNZ had used the guilt by association method to convict Ernslaw One Ltd.

 

For the reasons above, the Authority decides that the broadcast by Television

New Zealand Limited of an item on Frontline on 30 October 1994 breached

standard G6 of the Television Code of Broadcasting Practice in that it did not

deal with the environmental and business practices of Ernslaw One Ltd in a

balanced, impartial and fair manner.

A majority of the Authority decides that the item did not breach standard G19.

The Authority declines to uphold any other aspect of the complaint.

Having upheld a complaint, the Authority may make an order under s.13(1) of the

Broadcasting Act.

While an approach which reports "a cautionary tale" is justified, the Authority

decided that in view of the item's shortcomings in achieving balance, impartiality

and fairness – detailed on the preceding pages – it was appropriate to impose an

order requiring TVNZ to broadcast a summary of this decision and an apology to Mr Song.

order requiring

Order

Pursuant to s.13(1) of the Broadcasting Act 1989, the Authority orders Television

New Zealand Ltd to broadcast a summary of the decision on the complaint

about the programme broadcast on Frontline on 30 October 1994. The statement

shall also include an apology to Mr Thomas Song. The statement shall be

approved by the Authority and shall be broadcast within one month of the date

of this decision at a time and during a broadcast to be agreed on by the

Authority and the broadcaster.

The complainant sought a number of remedies which, when the complaint was

referred to the Authority by its solicitors, were listed as points 1–11. Taking into

account the provisions in the Broadcasting Act 1989, the Authority has considered

each one carefully and has decided that the Order imposed is the appropriate response

to the complaint.

The Authority would point out that its decision is not a comment on the accuracy or

otherwise of the item's conclusion. It deals with broadcasting standards issues and it

has concluded that the method used by TVNZ to reach its conclusions contravened

standard G6 of the Television Code.

Signed for and on behalf of the Authority

 

Iain Gallaway

6 July 1995

Appendix

Ernslaw One Ltd's Complaint to Television New Zealand Ltd – 16 November

1994

On behalf of Tauranga-based forestry company Ernslaw One Ltd, The Marketing

Group complained to Television New Zealand Ltd about an item broadcast on

Frontline between 6.30–7.30pm on Sunday 30 October. The complaint was laid

under standards G6 and G7 of the Television Code of Broadcasting Practice which

require, respectively, balance and the avoidance of any deceptive programme practice.

The complaint said that the item had used footage from an ABC documentary which

reported the practices of some Malaysian-based forestry companies, including

Rimbunan Hijau, in Sarawak and Papua New Guinea. The complaint continued:

It then, on the basis that Ernslaw One is 'related' to Rimbunan Hijau presents

an alarmist scenario – "a cautionary tale" in the words of the Frontline script – to

New Zealanders of how Ernslaw may be operating and may intend to operate in

the future.

For an opinion on the detrimental effects of Rimbunan Hijau's forestry operations in

Papua New Guinea, the item had interviewed a former Forestry Minister (Mr Time

Neville) but, the company continued, had failed to mention that Mr Neville's forestry

scheme in Papua New Guinea would have involved four times the actual harvest from

1989–1993. As neither the industrial foresters nor the resource owners in Papua

New Guinea had been interviewed, the complaint alleged that the item lacked balance

about Mr Neville's real agenda.

Furthermore, as TVNZ's crew was shown through Malaysia by members of the

Democratic Action Party (DAP), the credibility of the programme was suspect as one

of the DAP's political objectives was to discredit the Tiong family which owned and

operated Rimbunan Hijau.

The complaint acknowledged that Ernslaw One Ltd was part of the Tiong family

business but emphasised that Mr Thomas Song, the managing director in New

Zealand, was not a family member. Mr Song, it stated, was responsible for running

the diversified businesses operated by the family in New Zealand.

The complaint then listed three specific aspects of the broadcast which, it said, lacked

balance.

First, although the company while the programme was being prepared had referred to

some companies and organisations with which it worked in New Zealand, Frontline

had failed to make reasonable efforts to include the significant views of either

Ernslaw's own staff or credible third parties. This material, it was explained, would

have referred to the company's total commitment and adherence to environmental

practices, procedures and standards under the resource management legislation.

The evidence would have shown that the company planted four hectares of plantation

forest for each one harvested, that no native timber was logged, that the company had

a large tree nursery and afforestation programmes, that 99.9% of the staff were New

Zealanders and that the company was actively developing manufacturing in New

Zealand. Pointing out that the print media had discussed and dealt with the

company's activities fairly and comprehensively, the complaint commented:

The company asserts that this Frontline team deliberately omitted such

viewpoints because they did not 'fit' the story as they had chosen to 'package'

it.

Secondly, the company complained that the explanations given by TVNZ as to why it

wanted an interview with the company were dishonest and did not disclose the

programme's real direction. The broadcast, the complaint continued, only covered

negative viewpoints and the names of three people interviewed but not included in the

broadcast were noted. However, it was argued that as their remarks did not include

negative comments about Ernslaw and did not fit the cautionary tale which was

"stitched together" by TVNZ, they were omitted. The company added:

In brief, the Frontline programme simply bought the initial premise of the ABC

documentary, The Malaysian Invasion, hook line and sinker, and decided to

apply it to Ernslaw on the basis not of its performance or track record in New

Zealand, but on the basis of "guilt by association".

As the third aspect of the lack of balance, Ernslaw complained that TVNZ's publicity

about the programme before it was broadcast put the company "in a destructively

negative light". An article from the "Sunday News" was appended to the complaint

to illustrate this aspect of the complaint. It used the term "rapacious" and insinuated

that Rimbunan Hijau and the Tiong family was involved in bribery and intimidating

behaviour. Despite these allegations, the company complained, the broadcast did not

provide evidence of its wrongdoing. It continued:

Possibly that is why it described itself as "a cautionary tale". That is, however,

in our view, irresponsible use of the power and responsibility you have as

broadcasters to present clear facts. Cautionary tales are close to fiction and

viewers [are] unable to distinguish between opinion and proven facts in this kind

of Aesop Fables scenario.

It pointed out that the only comment included from New Zealanders – from Paul

Bibby and Murray Horton – were negative. Mr Bibby, it added, was a dairy farmer

who was opposed to all forestry regardless of compliance with the Resource

Management Act and Mr Horton represented the Campaign against Foreign Control

(CAFCA).

Noting in addition that a company representative had met with Mr Bibby on several

occasions, the complaint said that a company spokesperson had been made available

to talk to Frontline about the company's involvement in community relationships.

However, he was not interviewed. Instead, Frontline had drawn a "prejudicial

linkage" between the family's Sarawak operations and Ernslaw's New Zealand's

operations by interviewing a Member of Parliament from Sarawak who belonged to

the political party which was opposed to the one with which the Tiong family was

involved.

On the basis of an interview with an opposition politician in Sarawak, Sim Kwang, the

complaint continued, the programme said that the Tiongs would play "hardball" in

New Zealand. However, no evidence of Ernslaw doing so was given. Rather, the

comment was linked with the "primitive" forestry practices described by Mr Bibby

which were in vogue 20 years ago.

After observing that Mr Bibby was not farming at the time of the "primitive" forestry

practices and, accordingly, was unaware of their impacts on dairy farming, the

complaint recorded that one farmer who knew of both the former and current practices

was interviewed. The complaint continued:

His lack of concern about Ernslaw's operation and rate of logging, was however,

obviously not controversial enough to warrant being aired, even though it might

have provided some balance for Bibby's vague insinuations of fast track logging

and a lack of responsiveness from Ernslaw.

Instead:

Bibby's comments were, in fact used to further extend the allegations from the

ABC documentary that all Malaysian forestry companies operate with high

handed arrogance and a complete lack of sensitivity or concern for local people

and their futures.

Moreover, the complaint added, although the questions about Ernslaw's operations in

New Zealand were linked to the operations of Rimbunan Hijau elsewhere, the

examples were not necessarily accurate. For example, a parallel was drawn between

blockading of roads by environmentalists and forest dwellers in Malaysia in their

battle with logging companies and the blockading of logging roads by Maori on

Matakana Island where Ernslaw had some forestry rights. The company wrote:

The number one issue here, is that the blockade on Matakana Island was not

directed at Ernslaw One. It was never directed at Ernslaw One. It was directed

at ITT Rayonier which had the rights to log the mature trees on Matakana.

Ernslaw One had rights to trees which were not due to mature until 2010. The

blockade was put in place by local Matakana Maori to stop logging of mature

trees, to which Ernslaw One did not have rights.

Hence a combination of ignorance, emotion and insinuation has combined to

produce images and words which will undoubtedly have convinced many people

that Ernslaw One was responsible for the blockade on Matakana.

To justify the remark, the company attached an article from the "National Business

Review" which stated clearly that the blockade had involved ITT and Maori

protesters. Furthermore, the complaint observed:

We were also aware, that Frontline did interview Maori and that they declined

to say anything detrimental about Ernslaw based on their experience of the

company as a fair operator. Representatives from the Matakana Trust are the

only credible spokespeople on this issue – Murray Horton, the source used to

'substantiate' the already inaccurate blockade comments by Mr Vaughan

[Frontline's reporter] has no substance and no connection with the issue.

After noting that the shots screened of logs coming out of Whangapoua Forest showed

logs for companies other than Ernslaw, the complaint provided the following

summary:

To conclude, throughout its entirety, your programme used a dangerous

combination of footage from the original ABC documentary, opinion and

allegation to create a scenario which bears no relation to the brief the company

was given of the thrust of the story. In short, the company, which has always

had a policy of being open with the communities in which it operates, and media

requests for access, comment, information, was ambushed.

As evidence of that comment, a copy of Frontline's outline of the storyline to the

company was attached. The complaint observed:

You will note that it gives the company no indication that the major thrust of

the story is to illustrate to New Zealanders that Ernslaw One may be a threat to

New Zealand and its environment because it is related to a Malaysian group that

is alleged to have plundered vast tracts of PNG rainforests and conned the

indigenous peoples out of their heritage.

Pointing out that TVNZ's written outline indicated that the item would deal with the

New Zealand operations only, the company had made its top management available to

answer questions. However, the company maintained, the Frontline team had been

captured by some Malaysian politicians from the Democratic Action Party and the

item accepted their approach. "That does not", the company argued, "constitute

balance in our view". Pointing out also that the Malaysian government had objected

to the ABC programme and that the item would impede quality Asian investment in

New Zealand, Ernslaw One Ltd said a public and private apology was expected along

with the opportunity for the company to present a balanced view of its philosophies,

practices and long term business institutions in New Zealand.

TVNZ's Response to the Formal Complaint – 22 December 1994

In advising the complainant of its Complaints Committee's decision, TVNZ began:

The item drew attention to the fact that a family connected with widely-

criticised logging practices in the rain forests of Papua New Guinea and Sarawak

was involved in investment in New Zealand.

Assessing the complaint under the nominated standards, TVNZ summarised what it

considered to be the complaint:

You believed that the programme (and the televised trailers that preceded it) was

unfair to your client by presenting what you described as an "alarmist scenario",

that it was unbalanced because insufficient effort was made to reflect the

viewpoints of Ernslaw One and third parties with whom the company works,

and deceptive in its approach to your client during the making of the

programme.

In response, TVNZ said that the item stated that the Tiong family – whose operations

in Asia had evoked complaints that rain forests were being irreplaceably destroyed –

had substantial investments in New Zealand. It argued that the role of the news media

was to alert the public of the presence in New Zealand of a family linked to the

exploitation of natural resources. Analogies were drawn to the media's role when

reporting on other types of businesses which set up in New Zealand and which were

suspected of unethical practices elsewhere.

Dealing with the specific aspects of the complaint, TVNZ maintained that Mr Neville

(the former Forestry Minister in PNG) was an important source of information and

had been properly used. Referring to its Complaints Committee assessment of the

complaint, TVNZ added:

It also noted that the two journalists heading the production team are among the

most experienced in New Zealand and could find no evidence that they were

overly influenced by members of the opposition Democratic Action Party in

Malaysia. One of the reporters, working undercover, visited logging sites and

spoke to those directly involved – often without any local escort to guide or

influence him.

TVNZ also argued that the item had made every effort to reflect the views of the

company and of credible third parties. Mr Thomas Song, it said, presented Ernslaw's

commitment to environmental standards and the programme reported the company's

policy of planting trees, that it was not involved in logging native timber, that it

employed three hundred New Zealanders and that all harvesting took place in

accordance with the Resource Management Act.

TVNZ did not understand the aspect of the complaint which alleged that any

reference to the company's total investments in New Zealand was omitted and quoted

an extract from the script where they had been summarised.

As for the Tiongs' activities overseas, TVNZ wrote:

In seeking comment about the Tiongs activities abroad, the "Frontline" team

were assured by senior personnel at Ernslaw One that they represent the Tiongs

in New Zealand. It was an assurance made without qualification. However,

they made the decision not to answer questions about the operations of their

principals in Sarawak and Papua New Guinea. "Frontline" offered them the

option of passing on to their principals the questions raised by the "Frontline"

team's visit to Sarawak – but that proposal received no response from Ernslaw

One.

TVNZ concluded that the item had been balanced in its portrayal of Ernslaw One and

its links with logging operations in Sarawak and Papua New Guinea.

With regard to Frontline's approach to the company, TVNZ commented:

After hearing a detailed description of the manner in which the approach was

made, the [Complaints] Committee decided that no deception was involved and

that no effort was made to withhold the "real direction" of the investigation

during communications with the company.

While acknowledging the fax referred to by the complainant, TVNZ said discussions

had also taken place before the meeting between the Frontline representatives and Mr

Song and three of his colleagues. It commented:

The two "Frontline" journalists then spent almost an hour briefing the Ernslaw

One representatives on almost every aspect of the story. They spoke of the

destruction of the rain forests in Sarawak and Papua New Guinea, the claims of

bribery and corruption in both countries; the death threats made against Mr Tim

Neville, the fears of silting at Whangapoua and concerns over the purchase of

Matakana Island. At the end of the discussion, Mr Song agreed to be

interviewed on everything save the allegations relating to the Tiong activities in

Sarawak and Papua New Guinea.

Contrary to the assertion in the complaint, none of the three named men outside the

company listed were interviewed. One was spoken to off-camera, one was spoken to

by telephone a few days before the broadcast and the other was not spoken to at all.

Frontline, TVNZ insisted, had not accepted the ABC Four Corners programme

without question. Rather, the Frontline team had questioned the producers of the

Four Corners' item and had undertaken their own research. TVNZ remarked:

Given that this was an investigative report, requiring delicacy and a good deal of

undercover work in order to provide New Zealand viewers with an accurate

picture, the committee believed the approaches made by "Frontline" were at all

times proper.

The trailer, TVNZ stated, had shown that the item was, indeed, "a cautionary tale".

TVNZ then pointed out that the magazine and newspaper articles were not covered

by the statutory complaints process set out in the Broadcasting Act and declined to

deal with that aspect of the complaint.

TVNZ disagreed with the aspect of the complaint which suggested that Mr Paul

Bibby was a lone anti-forestry voice in the area. Rather, he had been interviewed as

chairperson of a local action group which monitored the company's logging

operations. The contribution from Mr Sim Kwang Yang in Sarawak was included as

one who had knowledge of the Ernslaw principals.

As for the complaint that the item did not present evidence of Ernslaw playing

"hardball", TVNZ cited Justice Greig's comment in a decision relating to the purchase

of Matakana. He had written:

"In these circumstances there is clear intention to circumvent the provisions of

the Land Settlement Promotion and Land Acquisition Act by arrangements

which, though formulated and documented in terms which do not give freehold

or free simple right to Ernslaw One, go as far as to grant it something only a

little less."

TVNZ said the judicial decision to stop the transfer of the title to Ernslaw was

evidence of the company's "hardball" tactics.

TVNZ disputed the description in the complaint of Ernslaw's involvement on

Matakana and maintained that the blockade was directed at both ITT Rayonier and

Ernslaw. "To suggest that it was directed at ITT Rayonier because it had the rights to

log the mature trees is wrong", it said and added the following explanation:

Certainly the Maori claimants were concerned about the logging of mature trees,

but their overriding concern was about the wider implications of the deal. They

argued, among other things, that the sale was illegal because Ernslaw One had

used a shelf company, Caldora Holdings, to circumvent the need to get

ministerial approval to buy the island. The view was later upheld by the High

Court which, in effect, ruled that the sale was invalid: The blockade was lifted

only after Ernslaw and Far agreed to sell their interest in the island to the local

iwi.

Mr Horton of CAFCA, TVNZ continued, was an acknowledged expert in the area.

Repeating its denial that Frontline ambushed Ernslaw, TVNZ disagreed that the

programme makers were "captured" by opposition Malaysian politicians. The

politicians' affiliation was known and the issue of his role as a member of the political

opposition, rather than a specific forestry issue, was focussed on in one question to

Yang.

TVNZ said it was incorrect to state that the storyline followed or supported the

opposition political line. The concerns about environmental change, it added, were

international.

In summary, TVNZ said:

In examining the codes against which your complaint was tested, the Complaints

Committee came back to the overall theme of the programme which was to alert

New Zealand viewers to substantial investment in New Zealand by a family

whose activities in the rain forests of Sarawak and Papua New Guinea have been

widely condemned.

In this context, the committee was unable to find that the programme lacked

balance, was unfair or was partial in its assessment of either the Tiongs or

Ernslaw One. G6 was found not to have been breached.

As far as G7 was concerned, the committee believed that Ernslaw One was fully

briefed on the subject being investigated and that, in the necessarily careful and

cautious approach required in investigative journalism, no deception was

involved. G7 was not breached.

Expressing regret that the complainant company had found fault with the programme,

TVNZ was of the view that the item, which it said provided viewers valuable

information about a matter of public interest, had complied with the standards.

Ernslaw One Ltd's Complaint to the Broadcasting Standards Authority – 9

February 1995

Dissatisfied with TVNZ's response, the solicitors for Ernslaw One Ltd (Glaister

Ennor) referred the complaint to the Broadcasting Standards Authority under s.8(1)(a)

of the Broadcasting Act 1989.

They began by summarising the three points contained in the original complaint which

were:

            1.         TVNZ's failure to make an effort to include the point of view of Ernslaw

                        and other objective third parties which were offered to the programme

                        and not taken up by the producer or the reporter.

            2.         TVNZ's failure to give proper briefings/explanation as to the reasons for

                        seeking the interviews and comments from company officers of Ernslaw.

            3.         The prejudicial nature of the trailers to the programme and the use of the

                        Sunday News preview. It is alleged that TVNZ gave information to

                        Sunday News to complete a preview that was prejudicial to Ernslaw as

                        the trailers for the content of the Frontline programme.

Six reasons for the complainant's dissatisfaction with TVNZ's decision were

recorded. Among the reasons were the allegations that Ernslaw was misled as to the

extent that the item was concerned with the operations of the Tiong family in

countries other than New Zealand, that Mr Song had not assured TVNZ without

qualification that he represented the Tiongs in New Zealand, and that Ernslaw was not

advised of Frontline's visit to Sarawak and, therefore, was not given a chance to

comment on that aspect of the broadcast.

The complainant also listed six reasons for seeking the Authority's review of TVNZ's

Complaints Committee's decision.

            1.  Ernslaw was deliberately misled by TVNZ into believing that the

Frontline Programme was to focus on the Ernslaw operation in New Zealand

and would not be closely linked to the overseas operation of Ernslaw's

principals.

In support of this contention, the solicitors enclosed a copy of the faxes between the

parties and a transcript of the discussion between the Frontline team and the company

representatives before the on-camera interview. In summary of this aspect, the

referral noted:

Mr Song stated to both journalists that he could not provide answers regarding

the Sarawak and Papua New Guinea operation with which he was unfamiliar.

The journalists accepted this and acknowledged that the New Zealand

operations were completely different to the overseas operations. Despite this,

as the transcript of the on camera interview shows, TVNZ attempted to get Mr

Song to answer such questions and, in the programme, closely linked the

overseas operations to Ernslaw in New Zealand.

As for the second reason for seeking a review, the solicitors stated:

            2.  TVNZ mislead the viewer into believing the activities of Ernslaw in New

Zealand are so recent that they should be judged only by the alleged operations

of its principals overseas rather than by detailing Ernslaw's performance in New

Zealand during the last four years.

By highlighting the opinions of the Tiongs and Rimbunan Hijau, the referral observed,

the item ignored the Ernslaw's track record in New Zealand during the previous four

years.

The third contention:

            3.  TVNZ failed to show balance, impartiality and fairness in dealing with the

issues related to Ernslaw's Whangapoua Forest and Matakana Island operations.

By focussing on two relatively minor but controversial aspects of Ernslaw's

operations in New Zealand, the item lacked balance as it ignored Ernslaw's widely

respected way of doing business.

The fourth point:

            4.  TVNZ did not give sufficient opportunity on air for Ernslaw to comment

specifically on its New Zealand operation and to answer its opponents about its

New Zealand operations.

The referral said that Ernslaw had supplied Frontline detailed information about its

operations in New Zealand but it was not included in the broadcast. Instead, the item

promoted the opinions of Ernslaw's opponents and, consequently, lacked balance.

            5.  TVNZ used the opinions of opponents to the Tiong Family, Rimbunan

Hijau and Ernslaw and then presented them as facts to the viewers of the

Frontline Programme.

Noting that specific examples were listed later, the referral commented at this point:

           

            Ernslaw contends that there was a deliberate and intentional blurring by TVNZ

between fact and opinion. This was an attempt to TVNZ to mislead and

influence viewers.

            TVNZ played upon prejudice against Asian investment in New Zealand, and the

cutting of Rainforest to influence the viewer against Ernslaw.

            6.  The editing of the programme was prejudicial to and biased against

Ernslaw.

The explanation again referred to the item's lack of balance and the above six points of

dissatisfaction were summarised in the following manner:

TVNZ presented a programme which contained a strong negative bias

responsible for predetermining viewer response and conclusions. The natural

conclusion was a negative view of Ernslaw and its New Zealand operation, a

conclusion drawn by viewers who had not been made aware of the facts and

issues surrounding the subject matter in a fair and balanced presentation.

Ernslaw then listed the standards which it maintained had been breached by the

broadcast. They were s.4(1)(d) of the Broadcasting Act 1989 and standards G1, G4,

G6, G7, G19 and G20 of the Television Code of Broadcasting Practice.

It proceeded under a number of headings to give examples of where the standards had

been contravened.

Unfair Allocation of Air Time

Under this heading, the referral listed the amount of direct time given to various

speakers. It argued that the item was unbalanced given the large amount of air time

which had been given to the protagonists and was in breach of s.4(1)(d) and standards

G6 and G7.

Evidence of Emotive Use of Language

The use of such negative terms as "alarm bells", "tentacles" and the "grab bag of

investments" to describe the Tiong investment in New Zealand showed a bias against

the company which was in breach of s.4(1)(d) and standards G6 and G7.

Use of language by Susan Wood [The Frontline presenter] to preview the report

by Vaughan [the item's reporter] for TVNZ

The referral argued that the references used by the presenter were unfair and designed

to create a negative impact before the viewer could assess the broadcast. It wrote:

Viewers rely on documentary programmes such as Frontline to present unbiased

facts. Instead TVNZ is using that viewer confidence to further its own

predetermined view of the subject matter by using language that sets a tone of

overwhelming negativity.

It was alleged that the introduction breached s.4(1)(d) and standards G1, G4, G6 and

G7 of the Television Code.

Editing of Material

By combining alarmist music with scenes of falling logs and the use of dramatic

footage rather than accurate and factual material, the complaint alleged that the item

breached s.4(1)(d) and standards G1, G4, G6, G7 and G19.

Detailing of Ernslaw Investment

The reporter's comments about the Tiong empire tentacles, it was maintained, put the

company's investments in New Zealand in a bad light. The complaint noted:

Implicit in the ... presentation is the suggestion of colonisation by aggressive

Asian business people. This negative presentation clearly appeals to viewers

with a xenophobic mindset together with individuals and groups opposed to

Asian investment in New Zealand.

As the company was not given an opportunity to explain its investment philosophy

on air, the item was unbalanced and in breach of s.4(1)(d) and standards G1, G4, G6,

G7 and G20.

Horton Comment on Ernslaw Investment in New Zealand

Instead of seeking Ernslaw's comments about its investments in New Zealand, the

reporter referred to "alarm bells" and introduced Mr Horton of the Campaign Against

Foreign Control of Aotearoa (CAFCA). The complaint observed:

The viewers were left with the impression that this individual opinion,

unqualified, unsubstantiated and not supported by fact, is a factual account of

the situation.

...

Ernslaw contends that the unbalanced presentation of Mr Horton's general

opinions breaches section 4(1)(d) of the Act and breaches codes G6, G7, G19

and G20.

Material supplied by Ernslaw but not used by TVNZ

By omitting the following points from the programme which was screened but which

had been supplied to Frontline during the off and on camera interviews, it agued, the

item breached the nominated standards:

            *    Ernslaw's business philosophy and its commitment to the New Zealand

                 forestry industry and the whole economy.

            *    The distinction between the plantation harvesting of pine forests in New

                 Zealand and the logging of rain forests in Asia.

            *    The item's suggestion that Ernslaw's shareholding in port companies gave

                 it significant power and control over the port company.

            *    Ignoring Ernslaw's philosophy of partnership.

            *    The inadequate reference to the fact that Ernslaw planted four hectares of

                 trees for every hectare harvested.

Interview with Mr Song

Mr Song was interviewed as Rimbunan Hijau's representative in New Zealand

although he had made it clear that he was not. The reporter's questions then tried to

link the New Zealand operations with those in Papua New Guinea and Sarawak. The

complaint commented:

TVNZ asserts in its decision following the complaint by Ernslaw that Mr Song

gave an unqualified assurance that he and Ernslaw represented the Tiong's in

New Zealand. It is decision responding to the complaint, TVNZ failed to

provide evidence to support this assertion.

Rather, the complaint continued, Mr Song had explained to Frontline that he was

unable to comment on the Tiongs' overseas operations. Nevertheless, he was asked

about bribery and corruption in a way which suggested that it was a practice used by

the Tiong family and Rimbunan Hijau and that Mr Song was aware of it. Alleging a

breach of standards G4, G6 and G7, the solicitors recorded on the company's behalf:

The unfair treatment resulted in a programme presented by TVNZ that took the

answers given by Mr Song in good faith and edited them so they became

responses to completely different questions which TVNZ dubbed into the

finished version of the programme.

Reintroduction of Mr Horton

Mr Horton's opinion and use of emotive terms, the referral argued, was presented as

fact. His opinion was unsubstantiated by any official spokespersons from the

organisations referred to and the item did not present his credentials which would

justify him being regarded as an expert.

Alleging a breach of the nominated standards, the complaint observed:

Again Ernslaw was not given the opportunity to present factual evidence to

counter this opinion. Ernslaw was not fairly treated and given sufficient time to

answer allegations made.

Sarawak Segment

The solicitors began this aspect by arguing that TVNZ, despite being advised by

Ernslaw that the operations in each country were separate, attempted to link the New

Zealand and Malaysian operations. Moreover, by not taking into account the fact

that the majority of timber interests in Malaysia were held by the indigenous people

there, the item incorrectly alleged that all the timber in Malaysia was controlled by

Chinese business interests.

The item was also incorrect in reporting that chopsticks and toothpicks were the end

uses of the logs shown. The referral noted:

The statement was made for its dramatic illustration of alleged wasteful greed

and squandering of resources without regard for its accuracy.

Subsequent enquiries by Ernslaw, the solicitors added, had shown that forestry

logging in Sarawak was controlled by government licences but Frontline was either

unaware of this or chose not to inform viewers of the fact. In addition, the item's

commentary suggested that logging in Sarawak amounted to forest destruction under

consents gained by trickery and fraud. It added:

            No acknowledgment was made that the concessions were gained within the law

            and that all logging by the concession holders takes place within the law and the

            consent of Government.

References in the broadcast to police scrutiny of the Frontline team in Sarawak

implied – inaccurately, unfairly and in an unbalanced way – that logging companies and

particularly Rimbunan Hijau controlled the official services.

Examination of Ernslaw, the Whangapoua Operation and Objections to the

Operations

The referral started this point:

Continuing the negative theme of the programme, the report again attempted to

link the New Zealand operation to that of Malaysia and Papua New Guinea by

asking the question "What can we expect of the strategic foothold in New

Zealand?"

It was answered by the reporter with the comment that there was already evidence of

"hardball" business tactics.

The substantial interview with Mr Bibby, the referral continued, was not offset

adequately by Mr Song. Mr Bibby's concerns about past practices could have been

adequately rebutted by Ernslaw executive, Mr Johnston, who had dealt with the

matter during an interview recorded but not screened by Frontline.

Contending that this segment of the programme presented Ernslaw's operations

incorrectly, the complaint argued that the item had failed to acknowledge Ernslaw's

compliance with the guidelines set by the National Institute of Water and

Atmospheric Research (NIWA) and the Resource Management Act. Accordingly, it

had breached the nominated standards.

Matakana Issue

            The information regarding Ernslaw's involvement in the Matakana Forest was

            presented in a deliberately prejudicial way to highlight the controversy of the

            issue and to highlight Ernslaw's involvement in that controversy. Ernslaw

            contends that the thrust of this segment of the programme was not to detail the

            issues surrounding the transaction but to use the controversy surrounding the

            Matakana issue to present to the viewers an opinion that Ernslaw has little

            respect for New Zealand law and New Zealand cultural and societal values.

The detailed and complex facts surrounding the Matakana land issue, the solicitors

continued, had been "truncated and shifted around to fit the predetermined bias".

Further, the sale by Ernslaw of all of its Matakana interests to the local Maori "at

much less than its true value" was not mentioned. These matters also breached the

standards.

Remedies

On the basis that its reputation among viewers, business associates and government

agencies had suffered because of the broadcast, Ernslaw sought from TVNZ both

broadcast and written apologies to Ernslaw One Ltd, Mr Song, the Tiong family and

the Tiong family company, Rimbunan Hijau Sendrian Berhad. It also sought

compensation under s.13(1)(d) of the Act and costs under s.16.

Further Correspondence

As is its practice, the Authority sought TVNZ's comments on the referral.

In a letter dated 16 February to the Authority, TVNZ noted that the referral was

"much more extensive" than the original complaint. It had been agreed by the

complainant that the complaint should be assessed under standards G6 and G7 of the

Television Code but the referral now quoted, in addition, standards G1, G4, G19 and

G20 and s.4(1)(d) of the Broadcasting Act.

TVNZ observed:

Frankly, this appears to be a whole new complaint and we request that the

complainant be asked to recast the referral in the terms of the original complaint.

When asked for their comment on TVNZ's response, in a letter dated 2 March 1995

the solicitors for Ernslaw One Ltd expressed their disappointment at TVNZ's

attitude. They wrote:

It seems inappropriate for TVNZ to attempt to avoid having the Broadcasting

Standards Authority examine the issues raised in the initial complaint in a formal

way by an independent and impartial Board responsible for administering the

Act under which TVNZ operates by claiming the submissions amount to a new

complaint.

They noted that the original complaint had referred to standards G6 and G7 and the

referral "for the sake of completeness" had noted a number of breaches of some other

standards. The additional standards, they submitted on the company's behalf,

overlapped or followed as a direct consequence of breaches of standards G6 and G7.

They commented:

In respect of TVNZ's breach of section 4(1)(d) of the Broadcasting Act 1989,

we understand that the Authority has jurisdiction to consider breaches of the

statutory obligations of a broadcaster generally in addition to, and quite separate

from, any complaint relating to breaches of the Codes of Practice.

Should the Authority decide that the submissions extended beyond its jurisdiction and

that aspects amounted to a new complaint, the solicitors requested the opportunity to

recast the company's submissions.

The Authority advised TVNZ on 24 March 1995 that it agreed that pursuant to the

Broadcasting Act, referrals could not become in effect new complaints. However,

having examined the papers it concluded that the referral on this occasion did not

amount to a new complaint.

Whereas it did not agree that all the matters raised in the referral should be assessed

under the standards now cited, it accepted that all points bar one were either an

elaboration or a clarification of a point made in the original complaint and, therefore,

should be examined under standard G6.

The Authority also questioned whether standard G7 – which it regarded as referring to

matters of technology – was an appropriate standard on this occasion.

The one matter the Authority regarded as a new one and, accordingly, to which TVNZ

did not need to respond was the allegation that, through editing, completely different

answers were reported to the questions asked than had been given when the interview

was made. That matter was a reference to the prohibition or distortion through editing

in standard G19. That was a new matter in the referral as neither the issue or the

standard had been raised in the original complaint.

TVNZ's Response to the Authority – 7 April 1995

In its response to the Authority, TVNZ reported that it believed that its 22 December

letter to The Marketing Group dealt with most of the issues but it intended to

comment on some specific matters contained in the Ernslaw One Ltd's solicitors'

letter to the Authority.

It began:

TVNZ categorically denies that it deliberately misled Ernslaw One Limited

about the focus of the "Frontline" programme. Clearly, the complaint has

concerns about the references to Papua New Guinea and Sarawak. These issues

were thoroughly canvassed with Ernslaw One during the preparation of the

programme.

Describing the transcript attached to the referral as "far from a complete record" of

what was discussed before and after the interview with Mr Song, TVNZ referred to

the conversation between Mr Song and the reporter while the camera and lighting

equipment were being set up. TVNZ added:

In that conversation, the reporter went through the entire list of questions he

was proposing to ask Mr Song. It is the reporter's recollection that he went

through the list not once, but twice.

Moreover, with reference to standard G6, TVNZ reported that at the outset of the

interview the offer to stop the interview at any time should Mr Song feel

uncomfortable was repeated. TVNZ commented:

This is not an offer routinely made in news and current affairs work, but was

made in recognition of Mr Song's less than perfect command of English, and

because Mr Song had told our reporter that he had not previously done an

interview on television.

In the event, Mr Song handled the interview with ease, and did not baulk at any

of the questions.

At the conclusion of the interview while the equipment was being removed, Mr Song

chatted amicably with the reporter and did not indicate any misgivings. TVNZ said

that the understanding between Mr Song and its reporter was that should Mr Song

acquire relevant comment from his principals in Sarawak, Frontline would be happy

to incorporate it in the item. Furthermore, TVNZ recalled, Mr Song told the reporter

that he had seen the Foreign Correspondent item which featured the Tiong family but

had not complained about it.

For the Authority's information, TVNZ enclosed an outline of the Tiong businesses

in New Zealand as reported in the Sunday Star Times on 4 December 1994.

As for the allegation that the tape was edited to show answers being given to

questions which were not the question which was in fact asked, and to which the

Authority said TVNZ did not have to respond, TVNZ wrote:

While we thank the Authority for recognising that this was not raised in the

original complaint, it is such a serious charge to make upon the integrity of a

professional media organisation that we do wish to respond to this matter.

            We reject the charge as totally untrue and mischievous.

It added:

In each case, Mr Song's answers correspond exactly with the questions put to

him.

TVNZ then examined the following aspects that alleged a breach of standard G6.

1.         Unfair Allocation of Air Time

Arguing that "stopwatch" time measures were not a good measurement of balance,

TVNZ argued that the New Zealand segment gave Ernslaw's viewpoint fairly. It

reported that Frontline had made a considerable effort to obtain responses from the

Tiong family and Rimbunan Hijau.

2.         Emotive Language

Acknowledging that the language was colourful and descriptive, TVNZ said it was

accurate and not emotive.

3.         Use of Introduction by Susan Wood

TVNZ maintained that the words used were supported by the item and that the story

was accurate and thoroughly researched.

4.         Editing of Material

The music, wrote TVNZ, was not alarmist and the general views of the logging

operators in the Sarawak were fair and reasonable in the context of the story. The

phrase "voracious timber tycoons" was used before Rimbunan Hijau was mentioned

and the story did not contain any sinister connotations but established a backdrop to

the story.

5.         Detailing of Ernslaw Investment

That matter was dealt with in the response to the initial complaint.

6.         Horton Comment on Ernslaw Investment

Mr Horton's comments were a relevant and informed perspective.

7.         Material Supplied by Ernslaw

The material detailed in the referral, TVNZ contended, was not directly relevant to the

story's thrust. For example, it was an inappropriate occasion on which to deal with

Ernslaw's partnership investment policy. TVNZ commented:

Even when "Frontline" gives Ernslaw credit for its achievements, the programme

is accused by the complainant of giving only "a passing reference". We believe

the complainant has not grasped the fact that television scripting requires

economy of words, and crisp sentencing. It is an altogether different skill from

that employed in magazine or newspaper investigative work where the wordage

available is both considerably greater and not required to be linked to associated

visuals.

8.         Interview with Mr Song

TVNZ wrote:

TVNZ stands by the conduct of the "Frontline" team in the handling of this

interview.

Mr Song had a long, detailed and sympathetic briefing and was never apparently

disturbed by the question line.

9.         Sarawak Segment

Emphasising that two experience journalists had gone to Sarawak to check out the

facts, TVNZ said the item had given a first-hand account and had not suggested that

the logging companies controlled the police and immigration. TVNZ continued:

The report carried to New Zealand viewers a cautionary message, showing what

had happened in Sarawak and (by implication) what could happen elsewhere.

Respectfully we remind the Authority of the public's right to know – a vital

principle in any democracy claiming to have a free and unfettered press.

10.       Examination of Ernslaw etc

This had been dealt with in its response to the original complaint.

11.       Matakana Issue

This had also been dealt with.

TVNZ then said:

The complainants have produced a referral in which they have introduced many

matters not raised in their original complaint. They have drawn inferences and

made accusations against the "Frontline" programme and production team which

have absolutely no foundation.

Despite the numerous papers, TVNZ said that Ernslaw had not been treated unfairly

and the item did not lack balance. Because of the covert nature of the visit to Sarawak,

it advised, it had not been possible to obtain comment from Malaysian officials and

that fact had been acknowledged at the end of the broadcast.

TVNZ concluded:

The programme was neither one-sided, nor unbalanced but quite properly raised

an issue of public importance – something of which our viewers should be aware.

Ernslaw One Ltd's Final Comment – 24 April 1995

On the company's behalf, its solicitors made 12 specific points in its final comment.

First, they disputed TVNZ's claim that the briefing had "thoroughly canvassed" the

operations in New Guinea and Sarawak. As the transcript of the briefings recorded,

they contended, TVNZ had mentioned the overseas activities briefly and had not

referred at all to the trip to Sarawak. Mr Song had explained that his responsibilities

were limited to New Zealand and, the letter continued:

Had he been made aware that a significant part of the programme would concern

the activities of the Tiong family in Papua New Guinea and Sarawak and in

particular had he been aware that the film crew had visited Sarawak he would

have made available to the film crew someone from the Tiong family who was

able to comment on these matters.

Secondly, there were no significant discussions between Mr Song and Frontline's staff

other than about the matters recorded in the transcript. While the equipment was

being set up, Mr Song was in his office and the company's secretary (the writer of the

final comment) acted as go-between to check when the preparations were ready for

the interview.

As the third point, the complainant acknowledged TVNZ's offer to stop the interview

with Mr Song at any time but added that although he had felt uncomfortable with the

line of questioning about the Tiong's family activities, he had been afraid that an

interruption would reflect badly on them.

The company spokespeople, as the fourth point, were happy with the interview as

Frontline's staff seemed sympathetic and had allowed a company spokesperson to

speak extensively about the Whangapoua operations. However:

None of this material was used in editing the programme though much of it

would have provided greater balance but did not fit the storyline.

Fifthly, the comment began:

Mr Song denies that the reporter gave him the understanding that comment from

his principals in Sarawak would be incorporated into the finished programme.

Moreover, the company denied that Frontline's staff sought comments from the

company's principals about the Sarawak operations through Mr Song and added that

such a request would have been inconsistent with the point that the programme was

focussed on the Matakana and Whangapoua operations.

Sixthly, the ABC programme was not about Ernslaw Ltd, the company for which Mr

Song was responsible.

The company would have been happy to provide the Authority, as its seventh point,

with any information needed about the company's shareholding.

As the eighth point, the company said that an example of TVNZ's editing where the

answers did not fit the questions was apparent in the references to "fast-track"

logging. Mr Song's answers were edited to suggest that he had deliberately side-

stepped the question.

Ninthly, the source of TVNZ's reference to the felling of 6 million hectares of timber

in Papua New Guinea was not known. Exports amounted to about 6 million cubic

meters of logs which would have been produced from a smaller area of land.

As the tenth point, the company agreed that the briefing was friendly. However, it

had omitted the important point that the Frontline team had visited Sarawak.

Furthermore:

Had Mr Song known this fact he would have most definitely been disturbed by

the question line. In ignorance of the story context and the way in which his

answers were to be used he simply answered as honestly and openly as he

could, feeling that he and his company had absolutely nothing to hide.

The Sarawak trip gave rise to the eleventh point and asked:

Why did the TVNZ team have to be so covert in Sarawak? Clearly the

authorities were aware that they were entering the country as were the police.

Twelfthly, the company required Mr Song to manage the Tiong family's New Zealand

companies. He was neither qualified nor authorised to speak about the family's

activities overseas.

In conclusion, the solicitors wrote:

In summary, Mr Song trusted TVNZ to play fair in return for his openness in

allowing them to interview them. He feels that such openness and honesty has

been betrayed by TVNZ.

TVNZ had sufficient on camera material to broadcast positive aspects of

Ernslaw's operation but that such positive material was not relevant to the

story which was being told and accordingly was not used.

Further Correspondence

In a letter dated 1 May, the complainant's solicitors forwarded a letter received from

the Director of Forests in Sarawak. He disputed some of the comments in the item

about timber milling in Sarawak – especially those from the opposition politicians –

and reported that milling had been set at a sustainable level since 1992. That had

occurred following the report from an international group of consultants which had

commented that forest management in Sarawak was at a high level.

As for the Frontline item, the director observed:

The stage managed video designed to discredit Sarawak, the Tiongs and their

companies overseas especially in Papua New Guinea and New Zealand is as

extremely unfair and mischievous as it is full of inaccuracies, and false

information. It is unfortunate however many viewers in New Zealand who has

no knowledge of the truth or have any experience of tropical forests and Asian

culture will tend to believe what they viewed in the video. Those of us who had

studied in Universities in New Zealand, Australia, United Kingdom and North

America are only too familiar with such unethical tactics used by NGOs from

such countries to belittle developing nations like Malaysia who are becoming

more successful in international trade than their own countries. Their

destruction of their indigenous forest and treatment of their own indigenous

races are not only historical records but serve as a testimony to their perceived

supremacy of their own race. Many of them still could not accept that Asians

can be just as intelligent, capable and honest like themselves.

In a letter dated 19 May 1995, TVNZ responded to the reply from Ernslaw's

solicitors. In response to the statement that the transcript recorded all the significant

discussion between Mr Song and the reporter, TVNZ wrote:

We state categorically that there were in fact significant discussions between Mr

Song and the reporter before and after the interview was conducted. Some of

these discussions are not included in the transcript by Ernslaw. They took

place during the setting up of the camera and lights, and during the dismantling

of that equipment.

As for the comment that Mr Song was surprised by the extent of the questions about

the Tiong family, TVNZ said that the company representatives had seen the ABC

item broadcast on Foreign Correspondent and knew, from the outset, that the same

item had aroused TVNZ's interest.

Mr Song, TVNZ emphasised, had not objected to any of the questions during the

interview and had expressed no dissatisfaction at its conclusion. TVNZ added:

We reiterate that Mr Song was invited to provide further comment from the

Tiongs should he so wish. It was made clear to him that "Frontline" was

prepared to incorporate such material in the programme. He chose not to avail

himself of that opportunity.

We also reiterate, and wish to do so emphatically, that "Frontline" did not

misrepresent Mr Song's views or portray him as a "dishonest" person through

injudicious editing of the interview. The answers used exactly matched the

questions put to him.

With regard to the statistics, TVNZ said that it had checked the figures used in the

ABC item with Mr Neville and asked why objection had not been taken earlier.

As for the reasons for the covert visit to Sarawak, TVNZ recorded:

It is inconceivable that "Frontline" would have been allowed to film there had

prior permission been sought. This can be attested by the experience of other

camera crews who have been refused permission to film there in recent years.

Of course, this begs the question – if Malaysia has nothing to hide about its

forests why does it consistently try to prevent foreign journalists from filming

there?

Standing by its statistical information regarding logging in Sarawak, TVNZ said it was

confirmed by reliable sources. TVNZ questioned whether the letter from the Director

of Forests in Sarawak should be admitted as evidence as it had not had time to check

the content and, it concluded:

We can tell the Authority that while we accept that many chopsticks and

toothpicks may be made from bamboo, reliable sources in both Sarawak and

Papua New Guinea tell us that other timbers, including some shown on

"Frontline" are used for making those products.

TVNZ later supplied the Authority with a number of newspaper clippings which, it

said, supported the facts presented.

Ernslaw's solicitors responded in a letter dated 23 May 1995 and made four points:

1)  The inclusion, they said, of TVNZ's clippings at this stage was procedurally

     unfair and should not be accepted.

2)  Mr Song, they said, stood by his submissions as to the events before and after

     the interview.

3)  They also stated that Mr Song did not take exception to the statistics included

     in the Foreign Correspondent as he was responsible for the New Zealand operations

     only.

4)  As for the letter from the Director of Forests in Sarawak:

... we advise that this letter was forwarded to the Authority to give an

accurate and factual response by a suitably qualified authority and source

to some of the contentions made in both the programme and the TVNZ

submissions.

In another letter of the same date, TVNZ sent the Authority some press clippings

which, it wrote, helped to validate the points that it had made.

The Authority, on 23 May, acknowledged the letter and advised it would take into

account point one when the clippings were received.

In reply, on 25 May, the complainant's solicitors noted the Authority's response and

wrote:

We make the further point that such background information admitted at this

late stage as justification by TVNZ should not detract from TVNZ's treatment of        

our client Ernslaw One Limited, Mr Song, or Ernslaw's operations in New

Zealand that were broadcast on the Frontline programme.