BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

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AMENDED DECISION

This decision has been amended and re-issued following advice that the Authority’s original decision about a Labour Party advertisement, issued on 10 September 2005, relied on incorrect information.

The original decision noted that the advertisement stated that the Māori Party had voted with National 277 times. The figure of 277 was used on an audio copy of the advertisement supplied to the Authority by the New Zealand Labour Party.

After the decision was issued, the Labour Party advised that it had supplied the Authority with an early version of the advertisement that had not in fact been broadcast. The advertisement that was broadcast stated that the Māori Party had voted with National 227 times.

Upon receiving this advice, the Authority requested further submissions from all parties. No further submissions of substance were received.

Complaint under section 8(1)(a) of the Broadcasting Act 1989
Election programme broadcast on iwi radio – party political advertisement for Labour Party – stated that Māori Party had voted with National 227 times – Māori Party complained that advertisement was unfair and inaccurate – broadcaster upheld complaint but continued to play advertisements – complaint referred to Authority as Māori Party dissatisfied with action taken

Findings
Original decision by broadcaster to uphold complaint did not take sufficient account of relevant legal and factual issues – Authority obliged to revisit substance of broadcaster’s decision to uphold complaint – first issue for Authority whether advertisement was accurate and fair – complaint about action taken to be considered in light of Authority’s finding on this issue

Election Programmes Code Standard E1 – principles of Radio Code apply to advertisement
Complaints about election programmes must be considered in light of s14 New Zealand Bill of Rights Act – protects right to freedom of expression – freedom of political expression fundamental principle in democracy – this principle highlighted in preamble to Election Programmes Code

Principle 6 (accuracy) – advertisement did not mean that Māori Party had voted with National due to common policy considerations – figures provided by both Māori Party and Labour Party demonstrated that, including Committee stage, Māori Party voted same way as National at least 277 times – accuracy standard did not require Labour to put aside the Committee stage votes – figure of 227 not accurate – one aspect of complaint upheld as breach of accuracy

Principle 5 (fairness) – Māori Party identified two possible aspects of unfairness – distorted portrayal of overall voting patterns – no mention that Māori Party had more in common with Green Party than any other party – political advertising not required to be balanced – political advertising will always present one side of issue – advertisement not unfair in light of expectation of robust debate and advocacy – not upheld

In light of finding that broadcaster’s decision to uphold complaint made on incorrect grounds, action taken by it irrelevant – in light of technical nature of breach, no order made

This headnote does not form part of the decision.

Broadcast

[1] Raukawa FM, an iwi radio station based in Tokoroa, broadcast a paid political advertisement for the Labour Party. The advertisement was an “election programme” within the meaning of Part VI of the Broadcasting Act 1989.

[2] The script for the advertisement was as follows:

Voice 1:      Gonna vote Labour this year cuz?

Voice 2:     Well I'm thinking I'll have to.

Voice 1:      Eh?

Voice 2:     Yeah, see I was gonna vote for the Māori Party but then I read in Parliament the
                 Māori Party voted with National 227 times.

Voice 1:      True?

Voice 2:     Yep, I figure a vote for the Māori Party is just a vote for the National Party.

Voice 1:      Ah, that would be the same National Party that wants to get rid of the Māori
                  seats.

Voice 2:     Ae [yes]

Voice 3:     A strong voice for Māori at the decision-making table can only come from giving
                 both your votes to Labour.
                 Me haere whakamua tahi tatou [Let's move forward together]

Complaint

[3] The Māori Party, through its President, Professor Whatarangi Winiata, complained to Raukawa FM that the advertisement was inaccurate and unfair. The complaint alleged that the advertisement’s assertion that the Māori Party had voted with National 227 times was false, unfair, and deliberately misleading.

Standards and Principles

[4] Standard E1 of the Election Programmes Code of Broadcasting Practice is relevant to this complaint. It states:

Standard E1

An election programme is subject to all relevant provisions of the Codes of Broadcasting Practice for television and radio except for the requirement for balance. Robust debate, advocacy and expression of political opinion are a desirable and essential part of a democratic society and broadcasting standards will be applied in a manner which respects this context.

[5] Accordingly, in light of the complaint that the advertisement was inaccurate and unfair, Principles 5 and 6 of the Radio Code of Broadcasting Practice are also relevant. They provide:

Principle 5

In programmes and their presentation, broadcasters are required to deal justly and fairly with any person taking part or referred to.

Principle 6

In the preparation and presentation of news and current affairs programmes, broadcasters are required to be truthful and accurate on points of fact.

Broadcaster's Response to the Complainant

[6] Raukawa FM upheld the complaint, agreeing that the advertisement was both inaccurate and unfair.

[7] On the issue of accuracy, Raukawa FM concluded that the statement in the advertisement that the Māori Party had voted with National more than 200 times was “vastly exaggerated”, and has “no comparison to the true figures”.

[8] On the issue of fairness, Raukawa FM agreed that the advertisement “malign[ed] the integrity” of Tariana Turia, the Member of Parliament for Te Tai Hauauru and Māori Party candidate in the forthcoming election, and her work. Raukawa FM concluded that the advertisement was “totally against this radio station’s principles and beliefs”.

[9] In its decision, Raukawa FM did not specify the information on which it based its assessment that the figure in the advertisement was inaccurate.

Referral to the Authority

[10] The Māori Party, through its National Secretary Helen Leahy, referred the matter to the Authority. In its referral the Māori Party noted that it was dissatisfied with the action taken by Raukawa FM because, despite upholding the complaint, Raukawa FM intended to continue broadcasting the advertisement.

Broadcaster’s Response to the Authority

[11] Responding to the Māori Party’s referral, Raukawa FM made the following points:

• It understood that a radio station could not choose which political party advertisements to play, and that if a political party bought advertising time, then its election programme must be played so long as it was within the law
• The only option for a radio station, if it did not want to play a particular election programme, was to refuse to play all parties’ advertising from the outset.

[12] Accordingly, Raukawa FM advised, it considered that if it withdrew the offending advertising, it was similarly committed to withdrawing all advertising from other parties as well. Raukawa FM did not think it appropriate to withdraw all advertising as this would have prejudiced the right of its listeners to receive important information about the upcoming election. Preventing listeners from obtaining this information would run counter to the aim of the station, which was to inform Māori in the region.

[13] Raukawa FM advised the Authority that it did not wish to make any further comment regarding the factual basis for the advertisement’s figure of 227.

Complainant’s Final Comment

[14] The Māori Party offered no comment in response to Raukawa FM, but did provide the Authority with information in support of its assertion that the figure quoted in the advertisement was inaccurate. It provided two tables, which it noted had been compiled by staff at the Parliamentary Library. The first table recorded the number of occasions on which the Māori Party had voted the same way as the National Party during the first, second, or third reading of Bills before the House. The second table provided a breakdown of the number of times that the Māori Party had voted the same way as National during Committee stages of bills.

[15] The tables provided are as follows:

Votes on the 1st, 2nd and 3rd reading stages of bills

Māori Party voted for bill with:

Māori Party voted against bill with:

Total no. of times votes with each party:

National

20

67

87

Labour

39

4

43

Greens

37

39

76

United Future

36

12

48

ACT

4

71

75

Progressives

38

2

40

NZ First

34

42

76

Votes at the Instruction to Committee, and In Committee stages of bills

Māori Party voted for bill with:

Māori Party voted against bill with:

Total no. of times voted with each party:

National

73

192

265

Labour

180

57

237

Greens

237

137

374

United Future

172

73

245

ACT

10

215

225

Progressives

171

55

226

NZ First

96

120

216

[16] The Māori Party also submitted that the selection of the figure of 227 in the advertisement was random, and that the real issue in analysing voting statistics is not which party one votes with, but “each party’s response to the legislative material before the House”. It noted that the principal factor influencing the Māori Party vote was “the best interests of M?”.

Additional Information Provided by the New Zealand Labour Party

[17] The Authority asked the Labour Party to provide the information upon which it had based the claim that the Māori Party had voted the same way as National 227 times. The Labour Party provided a comprehensive bill-by-bill breakdown of the votes recorded by the Māori Party in Parliament. The total number of times that the Māori Party was recorded to have voted with National, excluding urgency and conscience votes, was 277.

[18] Following release of the original decision, the Labour Party explained the following:

• the figures provided by the Parliamentary Library initially gave the number as 227
• When the advertisement was first recorded, however, the number 277 was mistakenly used. It was this recording that was supplied to the Authority
• This error was discovered by the Labour Party shortly before the advertisement aired, and the number in the advertisement was changed to 227
• A subsequent manual check of the records by Labour Party staff, however, indicated that the number that should have been used was 277.

[19] A copy of the table supplied by the Labour Party, showing the result of 277, is annexed to this decision as Appendix Two.

Further Correspondence from the Complainant

[20] In response to the Labour Party’s figures, the Māori Party made a detailed submission. In relation to fairness, it submitted that:

The principle of fairness demands that the public has fair and accurate information to make their assessment of any particular issue. By singling out the way in which the Māori Party voted in common with the National Party, the actual voting record was distorted.

The records show that the Māori Party voted at least one hundred times more with the Green Party than any other political party. It was unfair not to highlight this pattern, as it represented a considerably different picture from the one that Labour has presented to the public.

The advertisement breached the Advertising Code of Ethics.

[21] On the issue of accuracy, the Māori Party submitted that the Labour Party had “manufactured” numbers to justify publication of an advertisement that was wrong, and which was intended to damage the Māori Party by frightening Māori voters into thinking a vote for the Māori Party was a vote for National. It gave four main examples in support of this contention:

• There were too many variations between the figures and methodologies employed by the Māori Party and the Labour party respectively in compiling the relevant statistics to enable any one of the totals arrived at to be usefully employed
• It was not useful to select a number (227) without explaining the basis on which that number was arrived at. Given the various ways in which votes could be counted – at the first, second, or third readings of bills, or at the Committee stage, as well as conscience votes (which are not party votes), the context of the figure should have been explained.
• Voting “with” a party was not the same as simply voting in the same way as the party; the real issue is not who one votes with, but what one votes for.
• It was inaccurate to focus on any commonality with National when, if anything, the figures suggested that it had more in common with the Green Party than with any other party.

[22] The Māori Party requested that the offending advertisement be withdrawn, and a public apology be made by the Labour Party.

[23] After receiving this further submission, the Authority was informed that the Māori Party had instructed a solicitor. A further submission was then received from the party’s solicitor, Donna Hall. Ms Hall’s submission primarily addressed matters of process. Ms Hall also cited Standards E1 and E2 from the Election Programmes Code, and submitted that the Authority should direct the broadcaster to refrain from broadcasting the advertisement and to broadcast a corrective statement.

Authority's Determination

[24] The members of the Authority have listened to a recording of the advertisement complained about and have read the correspondence listed in the Appendix. The Authority determines the complaint without a formal hearing.

Preliminary issues

[25] Standard E1 of the Election Programmes Code states that all principles of the Radio Code of Broadcasting Practice, except balance, apply to radio election programmes. In the present case, the Authority has considered the application of Principles 5 (fairness) and 6 (accuracy) in the Radio Code.

[26] Ms Hall, in her submission, also cited Standard E2. As this was not raised in the original complaint, the Authority has no jurisdiction to consider its application in the present case.

[27] The present case raises an issue about the scope of the Authority’s role in considering this referral. The complaint from the Māori Party alleges that having upheld the complaint, the action taken by Raukawa FM was insufficient, and that it should have withdrawn the advertisement. The question arises whether the Authority’s jurisdiction is limited to considering the appropriateness of the action taken, or whether it can – and should – also address the substance of Raukawa FM’s decision that the advertisement was inaccurate and unfair.

[28] The Broadcasting Act does not provide an explicit answer to this question. In these circumstances, the proper course for the Authority is to act within its functions (as required by s18 of the Crown Entities Act 2004, elaborated by s14(1)(c)) in the manner that best furthers the first stated aim of the Broadcasting Act. This is:

To provide for the maintenance of programme standards in broadcasting in New Zealand.

[29] Section 4 of the Broadcasting Act states that broadcasters themselves must be responsible for maintaining specified broadcasting standards, including those in any approved code of broadcasting practice (s.4(1)(e)). Section 5 of the Act states:

5. Principles—

This Part of this Act is based on the following principles:

(a) Broadcasters have a responsibility to deal with complaints relating to broadcasts and must establish a proper procedure to deal with them:

(b) A body other than the broadcaster must be available to complainants to ensure that broadcasters discharge their responsibilities in relation to programme standards

[30] Section 21 of the Act then specifies that one function of the Authority is to:

encourage the development and observance by broadcasters of codes of broadcasting practice appropriate to the type of broadcasting undertaken by such broadcasters.

[31] One of the codes of broadcasting practice relates to election programmes. The Authority can also impose penalties in terms of section 13 of the Broadcasting Act if broadcasters breach the Code. Its decisions can be appealed to the High Court in accordance with section 18.

[32] In light of these statutory provisions, the Authority concludes that the clear intent of the Broadcasting Act is that the Authority should play a key role in ensuring that broadcasters discharge their responsibilities under the Act, including that they observe the codes of broadcasting practice. A vital part of the Authority’s role is to interpret the codes to provide direction and guidance to broadcasters. This assists broadcasters to comply with their obligations under the Broadcasting Act.

[33] Accordingly, the Authority considers that where a complaint is that the action taken in upholding a complaint was insufficient, but the broadcaster’s decision clearly took inadequate account of the relevant factual or legal issues, the Authority may – and should – review the broadcaster’s decision. The integrity of the codes and the complaints system – and thus the maintenance of broadcasting standards – cannot be promoted by ignoring a decision made on inadequate grounds.

[34] In the present case it is apparent that Raukawa FM’s decision to uphold the complaint as being inaccurate and unfair was not based on objective evidence as to the voting behaviour of the Māori Party in Parliament. Raukawa FM did not cite a factual basis for its assertion that the figure was inaccurate, and thus unfair. In the view of the Authority, this constitutes a significant omission from its decision-making process, and requires the Authority to reassess the merits of the original complaint.

[35] For this reason, the Authority will assess whether the advertisement was either inaccurate or unfair. In light of its finding, the Authority will consider the second issue – whether the action taken by the broadcaster was appropriate.

The New Zealand Bill of Rights Act 1990

[36] Section 14 of the New Zealand Bill of Rights Act 1990 states that

Everyone has the right to freedom of expression, including the freedom to seek, receive and impart information and opinions of any kind in any form

[37] The Authority is obliged to consider the effect of s14 when it determines any complaint alleging a breach of broadcasting standards. In accordance with s5 of the same Act, the Authority can find that the broadcasting codes have been breached only where such a limitation on freedom of expression can be demonstrably justified in a free and democratic society.

[38] In the present case, freedom of expression is particularly significant. The right to free political expression is one of the founding principles of democracy and thus, especially during a critical time for the democratic process in the run-up to a general election, limitations upon that right must be imposed only after careful consideration.

[39] The importance of free speech in the democratic process is recognised in Standard E1 to the Election Programmes Code, which states that:

Robust debate, advocacy and expression of political opinion are a desirable and essential part of a democratic society and broadcasting standards will be applied in a manner which respects this context.

[40] The Authority therefore approaches the determination of this complaint in light of these principles.

The Parliamentary Process

[41] By way of preliminary clarification, the Authority briefly explains the legislative process. A bill passes through several stages before it becomes law:

• After being introduced, a bill is set down for its first reading. The bill is debated and there is a vote whether it should be read a first time. There may also be a further vote concerning the relevant select committee to which the bill should be sent.
• The second reading is the main debate over the principles of the bill. There is a vote on the motion that the bill be read a second time. There may also have been a prior vote on any amendments. The bill is then set down for its Committee of the whole House stage. At this time, there may be a further procedural vote.
• During the Committee stage, the bill is scrutinised in detail. Members may move amendments, voted on separately, and the member in charge may also move amendments generally voted on as one vote for each part of the bill. There may also be other procedural votes.
• The third reading requires additional voting before the bill becomes law.

Māori and Labour Party figures

[42] The Authority notes that there appears to be no disagreement between the two political parties that if the Committee stage votes are included, the number of times that the Māori Party voted the same way as National is at least 277, and perhaps greater (refer to tables above in paragraph [15], and to Appendix Two)¹

[43] The Māori Party’s statistics – compiled by staff at the Parliamentary Library – show that if votes at the Instruction to Committee and Committee stages are counted, along with the votes on the first, second and third reading of bills, the number of times that the Māori Party has voted the same way as National is 352.

[44] The figures provided by the Labour Party provide an even greater degree of specificity, and on a bill-by-bill breakdown show that excluding urgency and conscience votes, the Māori Party voted the same way as National on 277 occasions.

Accuracy (Principle 6)

[45] The Māori Party’s accuracy complaint had four main limbs:

• First, because of the variation in figures provided as to the party’s voting record, no one total could be “usefully employed to describe anything”
• Second, the complexity of the voting system is such that it was inaccurate to provide a figure with no explanation of which votes this figure referred to
• Third, the phrase “voted with National” did not mean simply voting in the same way
• Finally, the Committee votes suggested that the Māori Party has more in common with the Green Party, but this notion was ignored in favour of the comparison with National.

The Authority addresses each of these points in turn.

[46] The Māori Party argued that because of the variation in figures provided as to the party’s voting record, no one total could be “usefully employed to describe anything”. To illustrate this, it provided the following figures:

• 87, being the number of times that the party voted on the first, second or third reading of a bill in the same way as National
• 265, being the number of times that the party voted at the Committee stage of a bill in the same way as National
• 352, being a total of the two above figures, representing the total number of times the party voted in the same way as National.

[47] These figures include those occasions when the Māori Party voted with both National and Labour.

[48] The Labour Party, on the other hand, provided these figures:

• 227, being the figure cited in the advertisement
• 277, being the number of times that the Māori Party voted, both during first, second or third readings of bills and during the Committee stage, in the same way as National
• 281, being the above figure, with the addition of 4 occasions on which the Māori Party voted in the same way as National on urgency motions
• 328, being the above figure of 281, with the addition of 47 occasions on which the Māori Party member voted in the same way as National on matters of conscience.

[49] These last three figures include only those occasions when the Māori Party voted with National but not Labour; they do not include occasions when the party voted with both Labour and National. This accounts for the discrepancy between the figures provided by the two parties.

[50] Accordingly, while a number of different figures have been provided, each figure relates to a different situation; they are not different and competing figures in relation to the same situation. Notably, however, what remains clear is that, including the Committee stage votes, whichever figures are adopted, the Māori Party voted in the same way as National on at least 277 occasions.

[51] The Authority concludes that as a matter of broadcasting standards, it was not inaccurate to include votes at Committee stages in the figures quoted in the advertisement. A vote at the Committee stage of a bill is a vote taken by members of the House, with potentially important consequences. As a matter of accuracy, the Authority sees no basis on which broadcasting standards could require that those votes be discounted in compiling the statistics used by the Labour Party.

[52] The Authority acknowledges, however, that based on the information received from the Labour Party, the number 227 cited in the advertisement was not correct. There were, at least, another 50 occasions on which the Māori Party voted the same way as National. Technically, this made the advertisement inaccurate and in breach of Principle 6 of the Radio Code.

[53] The Authority has consistently adopted a strict approach to the application of the accuracy principle. In the present case, where the advertisement constituted an attack on the Māori Party, the Authority considers that Labour had a particular responsibility to ensure that the claims made in the advertisement were correct. Labour accepts that the broadcast figure of 227, although understood at the time to be correct, did not represent the true figure; a review of the source material from Hansard showed that the correct number was at least 277. The discrepancy of 50 is more that 20% of the number cited in the advertisement.

[54] While the Māori Party complained on the basis that the figure was exaggerated – rather than too low – the Authority is nevertheless of the view that the discrepancy between the number used and the true number is such that the advertisement was inaccurate, and thus breached Principle 6.

[55] The second aspect of the Māori Party’s accuracy complaint is that the complexity of the voting system is such that it was inaccurate to provide a figure with no explanation of which votes this figure referred to. The Authority disagrees. It concludes that while some listeners may have assumed (wrongly) that the figure of 227 referred to votes on individual bills, in the context of a very brief advertisement conveying a political message, the accuracy standard did not require an explanation of the types of votes being referred to.

[56] Third, the Māori Party argued that the phrase “voted with National” did not mean simply voting in the same way. It was not the vote itself that was important, it argued, but the policy behind the vote.

[57] The issue for the Authority is, therefore, whether the words “voted with National” equated to a factual statement that the Māori Party voted with National for the same policy reasons, i.e. that the Māori Party was to some extent philosophically aligned with National.

[58] The Authority considers that the words “voted with National” do not mean that the Māori Party voted on legislation for the same policy reasons as did the National Party. That interpretation would necessitate going beyond the plain, ordinary meaning of the word “with”. Had the advertisement used more direct words such as “sided with National”, that may have implied some common philosophical stance, and a different decision may have been reached. But the advertisement used the word “with”, and in light of the necessarily robust political context and the right to freedom of political expression, that was satisfactory to denote “voting the same as”. The words “voted with” were sufficiently neutral.

[59] As a final limb to its complaint, the Māori Party emphasised that the Committee votes suggest that it has more in common with the Green Party. The Authority notes, however, that the advertisement did not pretend to be a summary or overall picture of the Māori Party’s voting record. It instead contained a snapshot of that record, a statement that the Māori Party had voted with National 227 times. On the basis of the information provided, that figure is not an exaggeration, as the Māori Party claims.

[60] The Authority notes that it is the very nature of political advocacy and political advertising that full background and context is usually omitted; political parties will inevitably cite individual statistics divorced from their complete context. As noted above, the Election Programmes Code recognises the particular context of political debate and advocacy. In light of this, and in light of the Bill of Rights Act, the Authority cannot conclude that the words used in the advertisement breached broadcasting standards.

[61] For the above reasons, one aspect of the accuracy complaint is upheld – the advertisement inaccurately used 227 as the number of times that the Māori Party had voted the same way as National, when the figure was at least 277.

Fairness (Principle 5)

[62] The Māori Party maintained that the advertisement was unfair on two grounds:

• The public should have fair and accurate information on which to make its assessment of an issue, and this advertisement distorted the true voting record
• It was unfair not to highlight that the voting pattern showed that the Māori Party had more in common with the Greens than any other party.

[63] The Authority does not uphold these complaints. It records its view that the complaints appear to be predicated on a false premise – that political advertising requires balance, and should canvass all perspectives on an issue.

[64] That is not the case. By its very nature, advertising – and especially political advertising – presents a particular perspective on an issue. It is a piece of advocacy that attempts to persuade listeners. Political advertising makes no pretence of being a means by which the public can receive unbiased, objective and comprehensive explanations of current issues; that is why s79 of the Broadcasting Act states that balance is not required in respect of election advertising.

[65] Because political advertising is inherently biased, the Authority should be extremely reluctant to intervene on grounds of fairness simply because the advertisement did not present a complete picture. This approach is consistent with a political party’s right to freedom of expression, protected by the Bill of Rights, and confirmed in the Election Programmes Code.

[66] However, while political advertisements do not require balance, they must be accurate. A question for the Authority in the present is thus whether any unfairness arises as a result of the identified inaccuracy. While in this case the Authority has found that the advertisement used an incorrect figure – 227 rather than at least 277 – and upheld this as a breach of the accuracy standard, it finds that this figure under-estimated rather than exaggerated the voting record of the Māori Party. The inaccuracy did not therefore give rise to unfairness.

[67] For completeness, the Authority records that the Māori Party did not specifically raise as an issue of fairness its concerns that the advertisement implied that the party was to some extent philosophically aligned to National. This was raised only as an issue of accuracy.

[68] The Authority notes that in any event, had this issue been raised, it would not have been upheld. The Authority has already found that the advertisement did not mean that the Māori Party voted as it did because it had the same policies as National. The Authority accepts that some people may have taken such an inference, but this was only one of a range of inferences that might have been taken from the advertisement.

[69] The Authority again notes that this is the nature of political advertising, whereby figures are used to create negative implications and to discredit opponents. Given that any inferences to be taken from the advertisement were based on figures that under-estimated the number of times the Māori Party voted the same way as National, and in light of the nature and importance of political debate and advocacy, the Authority considers that the programme was not, in this respect, unfair.

[70] As a concluding point, the Authority records that the Advertising Code of Ethics does not apply to election programmes. It is therefore not required to address this part of the complaint.

[71] The Authority therefore concludes that the advertisement did not breach Principle 5 (fairness) of the Radio Code.

For the above reasons the Authority determines that the advertisement for the Labour Party, broadcast on Raukawa FM, breached Standard E1 of the Election Programmes Code of Broadcasting Practice, and Principle 6 (accuracy) of the Radio Code of Broadcasting Practice, in that it inaccurately stated that the Māori Party had “voted with National” on “227” occasions, rather than at least 277.

The complaint alleging a breach of Principle 5 (fairness) of the Radio Code of Broadcasting Practice is not upheld.

Order

[72] While the Authority has upheld the complaint – as did the broadcaster – its grounds are fundamentally different from those outlined by the broadcaster in its decision. Accordingly, the Authority, rather than reviewing the action taken by the broadcaster as a result of its decision to uphold the complaint, must decide whether or not an order under s13 of the Broadcasting Act is appropriate.

[73] In all the circumstances of the case, the Authority considers that an order would not be appropriate. This is because, first, the inaccuracy in the programme does not disadvantage the complainant. Second, the Authority’s power to make orders does not include the power that would be the most appropriate – to order a broadcaster to stop broadcasting an advertisement that breaches broadcasting standards. Finally, the Authority considers that the orders it could make under s13 would unduly penalise the broadcaster.

[74] The Authority suggests, however, that to prevent further breaches of the Code, Raukawa FM requests the Labour Party to provide it with an accurate version of the advertisement for future broadcast.

Signed for and on behalf of the Authority

Joanne Morris
Chair
13 September 2005

¹The Authority has not gone to the original source material, but accepts, in light of the fact that both sets of figures provide a number of 277 or greater, that the figure is at least 277.

Appendix One

The following correspondence was received and considered by the Authority when it determined this complaint:

1. Formal complaint by Māori Party to Raukawa FM – email dated 5 September 2005
2. Further information from Māori Party in support of complaint – fax dated 6 September 2005
3. Raukawa FM’s response to Māori Party – email dated 6 September 2005
4. Māori Party’s referral to the Authority – email dated 7 September 2005
5. Raukawa FM’s response to the referral – email dated 8 September 2005
6. Further information from Māori Party in support of complaint – email dated 8 September 2005
7. Information from New Zealand Labour Party – email dated 8 September 2005
8. Final comment from Māori Party – letter dated 9 September 2005
9. Further submission from Māori Party’s solicitor – email dated 9 September 2005
10. Māori Party’s advice that no further submissions – email dated 12 September 2005
11. Labour Party’s advice as to reason figure of 227 used – email dated 13 September 2005

Appendix Two

Information provided by New Zealand Labour Party

Māori Party voting record information

The Broadcasting Standards Authority requested information that identifies how many times the Māori Party voted with the National Party used in the Labour Party advertising.

The Parliamentary Library provided the full list of official Hansard vote counts and the table included here provides the summary information required.  The Parliamentary Library hard copy identifies each vote and will be delivered to the BSA tomorrow morning.

The summary table identifies the number of times the Māori Party has voted with the National Party only.  It excludes when the Māori Party has voted with National and Labour.  It has been broken down by first reading vote, second reading vote, number of committee stage votes and the third reading vote for each bill, with totals for each bill and final totals.

MAORI PARTY VOTING RECORD: JULY 2004 – AUGUST 2005

This table indicates the number of times that the Māori Party has voted with National. The table covers the voting in all stages- First reading, Second reading, Committee stages and Third reading.²

²Base information is the official Hansard vote counts

  Legislation  First Reading  Second Reading  Committee stages (# of votes)  Third Reading  Total Number of votes 

1.

Fisheries Amd (No 4)

1

1

  2.

Electricity and Gas Bill

2

2

  3.

Building Bill

16

1

17

  4.

Appropriations (2004/2005) Estimates

1

1

  5.

Imprest Supply (2004/2005)

1

1

2

  6. 7.

Fisheries (No.3)

1

14

1

16

  8.

Education Amd Bill

1

1

  9.

Aquaculture Reform Bill

2

1

17

1

21

  10.

Holidays Amd Bill

5

1

6

  11.

Education (Establishment of Universities) Amd Bill

2

2

  12.

Care of Children Bill

2

23

2

27

  13.

Parental Leave and Employment Bill

14

1

15

  14.

Taxation Bill

13

2

15

  15.

Foreshore and Seabed Bill

1

30

2

33

  16.

Resource Management Amd Bill

1

1

  17.

Fisheries (No5)

1

1

  18.

Conservation Amd

1

1

  19.

Biosecurity Amd

1

1

  20.

Māori Commercial Aquaculure claims Settlement Bill

1

1

  21.

Te Ture Whenua Māori Amd Bill

1

1

  22. 23. Public Finance Bill   14 1 15 24. Resource Mgmt Electricity Bill   1 1 25. Customs and Excise (Motor Spirits) Bill   3 1 1 5 26. Terrorism Suppression Amd Bill  1 1 27. Hazardous Substances and New Organisms Amd Bill   2 2 28. Budget Debate   1 2 3 29. Social Security (Social Assistance) Amd Bill   1 1 2 30. Employment Relations Amd Bill   1 1 31. Medicines Amd Bill   2 4 1 7 32. Charities Bill   3 11 1 15 33. Public Records Bill   1 7 1 9 34. 35. Identity (Citizenship and Travel documents) Bill  2 1 3 36. Prisoners and Victims Claims Bill   1 2 9 1 13 37. Tariff Bill   1 1 38. Budget Debate Appropriations Bill   1 1 2 39. Appropriations Supplementary Estimates Bill   1 1 2 40. Imprest Supply Bill   1 1 41. Overseas Investment Bill   2 2 42. Estimates Debate   11 11 43. Imprest Supply (2) Bill   1 1 1 3 44. RMA  2 9 11 TOTAL NUMBER OF MAORI PARTY VOTES WITH NATIONAL  277 URGENCY VOTES 4 TOTAL INCLUDING URGENCY VOTES  281

CONSCIENCE VOTES:

Civil Union

3

3

Human Assisted Reproductive Technology Bill

29

1

30

Relationships (Statutory References) Bill

2

2

9

1

14

  TOTAL INCLUDING CONSCIENCE VOTES  328