Complaint under section 8(1)(a) of the Broadcasting Act 1989
Radio Pacific – host stated that the BSA had not upheld a complaint from Māori Television about his comments criticising the channel – stated that Māori Television was “apartheid” and “racist” – allegedly inaccurate and denigratory
Principle 6 (accuracy) – inaccurate to state that BSA had not upheld the complaint when it had not yet considered the complaint – inaccurate to refer to Māori Television as Te Karere – upheld
Principle 7 (social responsibility) and guideline 7a (denigration) – Māori Television not “section of the community” to which denigration standard applies – comments not denigratory of Māori generally – not upheld
This headnote does not form part of the decision.
 On 25 July 2006 at approximately 7.10am on Radio Pacific, the host John Banks stated that the “money-guzzling apartheid state-owned Māori Television channel” had been “slapped down hard” by the Broadcasting Standards Authority. He said:
Te Karere, the taxpayer funded television channel, whinged to the BSA, that’s the Broadcasting Standards Authority, about my opposition to their waste of our money. Forty-four million dollars a year of completely wasted taxpayers’ money in this dreadful outfit. Te Karere was this week told, in no uncertain terms, that you cannot close down such debate about their taxpayer wastage. The long and the short of the complaint is that the racist broadcaster tried to close down privately-owned truth radio and failed. And that’s how it should be. Congratulations to the Broadcasting Standards Authority for an eminently sensible decision.
 Māori Television Service made a formal complaint about the broadcast to CanWest RadioWorks Ltd, the broadcaster, alleging that the host’s comments were in breach of Principles 6 and 7 of the Radio Code. It pointed out that, at the time of the broadcast, the Authority had not determined its complaint about the host’s previous comments. Therefore, it said, the host’s remarks were inaccurate.
 Māori Television contended that it was inaccurate to describe the channel as “apartheid” and “racist”, and contended that these remarks denigrated Māori Television and Māori people generally.
 The complainant stated that Māori Television was not called Te Karere, and noted that this inaccuracy had remained uncorrected despite having been pointed out to the broadcaster in previous correspondence. Further, Māori Television had not tried to “close down privately-owned truth radio and failed”, it said. It had merely laid complaints about a broadcaster’s behaviour.
 Finally, Māori Television contended that it was inaccurate to state that the channel received $44 million dollars in funding each year. It wrote:
It is public knowledge that operating expenses are $12 million dollars with a further $16 million from Te Māngai Pāho (the Māori Broadcasting Funding Agency). This is to assist with internal productions. A contestable fund of $19 million is available to independent external production houses to produce programmes for Māori Television and other channels. This amount is not directly funded to Māori Television.
 CanWest assessed the complaint under the standards and guidelines nominated by the complainant. These provide:
In the preparation and presentation of news and current affairs programmes, broadcasters are required to be truthful and accurate on points of fact.
In programmes and their presentation, broadcasters are required to be socially responsible.
Broadcasters will not portray people in a manner which encourages denigration of or discrimination against any section of the community on account of gender, race, age, disability, occupational status, sexual orientation; or as the consequence of legitimate expression of religious, cultural or political beliefs. This requirement does not extend to prevent the broadcast of material which is:
i) factual; or
ii) a genuine expression of serious comment, analysis or opinion, or
iii) by way of legitimate humour or satire.
 CanWest maintained that the host’s comments about Māori Television being “apartheid” and “racist” were his genuine opinion and were therefore not subject to the accuracy standard. It also disagreed that his comments denigrated or discriminated against Māori or Māori Television.
 In relation to allegations of fact, the broadcaster acknowledged that the host had made a mistake as to whether the Authority had determined Māori Television’s previous complaint. However, it said, the host’s “misunderstanding and mistake” did not amount to a breach of broadcasting standards. CanWest said that the host had been advised of his mistake and he would not repeat it.
 Turning to the complaint about state funding, CanWest contended that Māori Television’s own figures showed that there was an excess of $44 million available to fund the channel (directly and indirectly). The host’s claim, it said, was “substantially correct” as he had not claimed that the taxpayers’ money was paid directly to Māori Television.
 The broadcaster also did not consider the host’s reference to Māori Television as “Te Karere” to be a breach of standards. However, it had also drawn this error to the attention of the host.
 Dissatisfied with the broadcaster’s response, Māori Television referred its complaint to the Authority under s.8(1)(a) of the Broadcasting Act 1989. It expressed its concern that the host’s statements were a continuation of a campaign against Māori Television, and that they were motivated by malice. The complainant maintained that the reference to “Te Karere” was inaccurate.
 With respect to the funding of Māori Television, the complainant pointed out that the contestable fund of $19 million was available to external production houses, and in some cases it did not come to Māori Television at all. CanWest’s reply that the statement was “substantially” correct was an admission that the host’s statement was not “wholly” correct, it said.
 Māori Television noted that, despite acknowledging that the Authority had not released a decision on the earlier complaint, CanWest had not retracted the host’s comments. It wrote:
In remaining so the inaccuracy still maligns Māori Television as being censured by the Authority, and has wrongly implicated the Authority in a decision it never made.
 The complainant noted that CanWest had not responded to its complaint about the host’s comment that it had tried to “close down privately-owned truth radio and failed”.
 CanWest reiterated that the host’s audience expected him to express strong views vehemently. It contended that listeners to the programme would know the actual position of the Māori Television Service and “would not be misled by the expression of [the host’s] well known views on the funding of MTV”.
 In relation to CanWest’s comments, Māori Television maintained that the host’s comments were inaccurate. Whether or not his audience expected and embraced his views was not the point, it wrote, and listeners would not necessarily know the actual position about Māori Television. The complainant asserted that listeners would be misled by the host’s “constant repetition of untrue facts”.
 Māori Television contended that the host’s comments were not an expression of opinion, but amounted to unqualified statements of fact to which the accuracy standard applied. It also maintained that Māori Television was made up of 181 employees who should be regarded as a “section of the community” for the purposes of the denigration guideline in Principle 7. The complainant wrote that by portraying Māori Television as racist and apartheid, the host was encouraging denigration of Māori Television and the broader Māori community.
 The members of the Authority have listened to a recording of the broadcast complained about and have read the correspondence listed in the Appendix. The Authority determines the complaint without a formal hearing.
 The complainant has identified several alleged inaccuracies in the broadcast. The Authority deals with each allegation separately.
References to a decision by the Authority
 The Authority has previously determined that a talkback programme amounts to “current affairs” when a host makes unqualified statements of material fact that set the basis for the discussion (see Decision No. 2005-016).
 In the present case, the Authority finds that the host was purporting to make factual statements to which the accuracy standard applies. The host made unequivocal statements that the Authority had declined to uphold a complaint by Māori Television about his previous comments. He said that Māori Television had been “slapped down hard by the Broadcasting Standards Authority” and that the Authority had made a decision on Māori Television’s complaint. Because the Authority had not considered that complaint at the time of the broadcast, it finds that the host’s remarks were inaccurate and in breach of Principle 6.
References to Māori Television as “Te Karere”
 With respect to the host’s references to Māori Television as “Te Karere”, the Authority also considers that the host was purporting to make a statement of material fact. It notes that Te Karere is a Māori news programme broadcast by Television New Zealand Ltd, and is unrelated to Māori Television. In these circumstances, the Authority finds that Principle 6 (accuracy) was breached due to the host’s references to Māori Television as “Te Karere”.
References to Māori Television as “racist” and “apartheid”
 The Authority has determined two other complaints by Māori Television about the host’s comments that Māori Television was “racist” and “apartheid” (see Decision Nos. 2006-056 and 2006-085). The Authority has concluded that these remarks were not subject to the accuracy standard because they were clearly identifiable as the host’s opinion and contained no statements of unqualified fact. It reaches the same conclusion on this occasion, and therefore it does not uphold this part of the accuracy complaint.
Comment about “Forty four million dollars a year of completely wasted taxpayers’ money”
 Māori Television stated that its operating expenses were $12 million and it received a further $16 million from Te Māngai Pāho to assist with internal productions. It said that $19 million was available to external production houses, but this money did not necessarily come to Māori Television.
 For the purposes of the accuracy standard, the Authority considers that the host was entitled to include the contestable fund in his calculation of taxpayer funding, because Māori Television receives the benefit of programmes made by the external production houses. As to whether the exact figure given by the host was inaccurate, the Authority notes that Māori Television has not provided any evidence to show that it does not receive the benefit of that proportion of the contestable fund. Therefore, the Authority declines to uphold this part of the complaint.
Comment that Māori Television had “tried to close down privately-owned truth radio and failed”
 The Authority declines to uphold the complaint about the host’s comment that Māori Television had tried to “close down privately-owned truth radio”. This was not an unqualified statement of material fact to which the accuracy standard applies. Rather, it was clearly discernible as an exaggerated comment made by a host who is well known for expressing his views in such a manner. The Authority considers that reasonable listeners would not have believed that the complainant was actually attempting to close down the radio station, particularly in the context of his preceding remark that “you cannot close down such debate”. Accordingly, the Authority does not uphold this part of the complaint.
 Guideline 7a is intended to protect “sections of the community” from denigration on account of their gender, race, age, disability, occupational status or sexual orientation, or as a consequence of their religious, cultural or political beliefs. In Decision No. 2006-056 the Authority determined that, because Māori Television is a body corporate created by statute, it is not a “section of the community” as envisaged by guideline 7a. Therefore it does not enjoy the protection of the prohibition against denigration.
 Māori Television also argued that the comments were denigratory of Māori generally, given that the channel promotes Māori language and culture. The Authority does not agree. While the host was critical of the decision to fund the channel with public money, his comments were directed at Māori Television as an organisation, rather than at Māori people generally.
 For this reason, the Authority declines to uphold the denigration complaint.
 For the avoidance of doubt, the Authority records that it has given full weight to the provisions of the New Zealand Bill of Rights Act 1990 and taken into account all the circumstances of the complaint in reaching this determination. For the reasons given above, the Authority considers that its exercise of powers on this occasion is consistent with the New Zealand Bill of Rights Act.
For the above reasons the Authority upholds the complaint that the broadcast of comments on Radio Pacific on 25 July 2006 breached Principle 6 of the Radio Code of Broadcasting Practice.
 Having upheld the complaint, the Authority may make orders under ss 13 and 16 of the Broadcasting Act. The Authority has upheld two aspects of the broadcast as being inaccurate. However, given the relatively minor nature of the inaccuracies, the Authority concludes that an order is not appropriate. It considers that the publication of its decision is sufficient on this occasion.
Signed for and on behalf of the Authority
27 November 2006
The following correspondence was received and considered by the Authority when it determined this complaint:
1 Māori Television Service’s formal complaint – 31 July 2006
2 CanWest’s decision on the formal complaint – 15 August 2006
3 Māori Television Service’s referral to the Authority – 21 August 2006
4 Further submissions from Māori Television Service – 23 August 2006
5 CanWest’s response to the Authority – 14 September 2006
6 Māori Television Service’s final comment – 25 September 2006