Complaint under section 8(1)(a) of the Broadcasting Act 1989
Mike Yardley Mornings – Newstalk ZB – discussion about financial problems at Christchurch Hospital – allegedly unbalanced, inaccurate and socially irresponsible
Principle 4 (balance) – balanced discussion in talkback context – not upheld
Principle 6 (accuracy) – one comment about acute demand provision inaccurate – upheld
Principle 7 (social responsibility) – balanced discussion in talkback context – not upheld
This headnote does not form part of the decision.
 On 29 April 2004, Newstalk ZB talkback host Mike Yardley introduced the Mike Yardley Mornings show with a discussion about financial problems at Christchurch hospital. Before inviting calls from listeners, the host asserted that the “financial shambles” at Christchurch hospital was a “major headache for everyone”, quoted from newspaper reports in ”The Press” and posed the question, “Why does our public health system seem to lurch from one crisis to the next?”
 Mr Yardley explained that the Canterbury District Health Board (CDHB) had ordered Christchurch hospital to cut costs, which meant that “the flag has gone up as an alert about patient safety if those cuts go too far.” Other comments in the introduction to the show included:
 The introduction continued with the host offering his views on private health insurance and the public health system generally. He then took calls from listeners. Later in the programme, he interviewed the Minister of Health, Hon Annette King.
 Jean O’Callaghan, the Chief Executive of the CDHB, advised the general manager of The Radio Network Ltd in Christchurch that the “serious allegations” in the broadcast warranted a formal complaint.
 CDHB complained that:
 TRN’s national complaints co-ordinator responded to CDHB’s complaint.
 TRN considered the complaint under Principle 6 and Guideline 6c of the Radio Code of Broadcasting Practice which provide:
Principle 6In the preparation and presentation of news and current affairs programmes, broadcasters are required to be truthful and accurate on points of fact.
Factual reports on the one hand, and opinion, analysis and comment on the other, shall be clearly distinguished.
 TRN described the host’s programme as “talkback based and [one which] elicits opinions and comment on issues of local and national interest.”
 TRN said the host had “editorialised” about CDHB at the beginning of his programme, using background sources which included:
 TRN noted that:
It also asserted that later on the programme the Minister of Health had ”upheld some of [the presenter’s] views” and questioned CDHB’s “financial controls”.
 Under Principle 6 and Guideline 6c, TRN considered that the matter was a “topical issue” which had been handled in a “typical way” for Newstalk ZB’s morning talkback show, that is: an editorial from the host; audience reaction; and background from an expert (the Minister of Health).
 TRN wrote:
While you may disagree with [the host’s] approach, he has delivered his opinion based on good background information and has followed up with a voice of knowledge [the Minister of Health].
As a clearly open forum and opinionated radio programme the host is quite within his right to question the need for management and board resignations, the board after-all is a publicly elected body.
 TRN considered that the host had gone “further than his own opinions and those of callers by questioning the Minister of Health.”
 TRN did not uphold the complaint. It noted that CDHB’s letter did not provide any counter arguments to the contested views.
 Dissatisfied with TRN’s decision, CDHB referred the complaint to the Broadcasting Standards Authority.
 CDHB said its chief executive happened to be listening to the radio at the time of the broadcast and was “extremely surprised and appalled” to hear the host’s personal comments about the DHB in the preamble to his talkback show.
 CDHB’s referral quoted a number of statements from the host’s introduction, adding that the host’s “voice intonation add[ed] greater interpretation to what was said”. CDHB said it did not believe that the host’s introduction was fair or appropriate because it was inaccurate and made allegations that were not backed up by fact.
 As for TRN’s suggestion that the Minister of Health had fairly commented on the host’s comments, CDHB said the Minister did not come on the programme immediately after the host’s comments and many listeners may not have heard the Minister.
 In relation to Guideline 6c to Principle 6, CDHB said:
… while [the host] did say at one stage, “it strikes me” which could be interpreted as expressing his own opinion, most of his comments were general and lacking in objectivity and did not contain the rider that they were his own views.
 In relation to TRN’s comments under accuracy, CDHB wrote:
We do not believe that using another media’s statements for background implying accuracy is fair. In fact, we have consistently stated that all media should check their stories with the CDHB rather than relying on other media for information. This has been proven a correct approach on many occasions nationally. Neither do we believe it the best approach to invite the Minister of Health to comment on local issues without first inviting the CDHB to comment. This was not done.
 CDHB also raised matters under Principle 4 and Guideline 4b(i) and under Principle 7 of the Radio Code of Broadcasting Practice, which state:
In programmes and their presentation, broadcasters are required to maintain standards consistent with the principle that when controversial issues of public importance are discussed, reasonable efforts are made, or reasonable opportunities are given, to present significant points of view either in the same programme or in other programmes within the period of current interest.
Broadcasters may have regard, when ensuring that programmes comply with principle 4, to the following matters:
(i) An appropriate introduction to the programme; and …
In programmes and their presentation, broadcasters are required to be socially responsible.
 Under Guideline 4b(i), CDHB considered the host’s introduction to the programme was not appropriate. Rather, it was:
… biased, inappropriate, unfairly portrayed the CDHB and was clearly designed to be controversial in its language used and its phraseology when discussing the Health Board, its management and Board members.
 Under Principle 7, CDHB said the host’s comments were not socially responsible but were:
… inflammatory, expressed personal opinions not backed up by facts and made some serious allegations about the CDHB, its management and its Board.
 TRN responded to the Authority that the basis of the host’s introduction was the financial position of CDHB, which was trying to clear a $10 million deficit and was facing a budget blow-out of nearly $8 million. The CDHB’s financial position was “clearly a legitimate topic for discussion”, it said.
 TRN considered that all the comments about which the complainant was “appalled” were “legitimate points for debate”. TRN continued:
The complainant believes that [the host] is not allowed to express his own views on these matters.
[The host] has been presenting this programme for a number of years. The audience is quite familiar with his approach which is full of opinionated conversation. This is the nature of talk radio.
The complainant consistently says that [the host] has got his facts wrong. In two lengthy letters it is noticeable that the DHB has failed to provide what are the ‘right’ facts.
They also make the extraordinary statement that using another medium to imply accuracy is unfair. In gathering together information for argument any sensible organisation, whether it be media or not, would use a variety of sources.
 TRN did not agree that the Minister of Health was not the best person to be invited onto the programme. It said:
In fact, as New Zealand’s Minister of Health, there should be no-one better.
 TRN considered it irrelevant that the Minister had been heard some time after the host’s opening remarks, noting that she was interviewed on the same morning and on the same programme, which it said showed the host’s “seriousness in getting to the hub of the issue and the problem.”
 TRN noted that CDHB had raised Principle 4 and Principle 7 in its referral to the Authority. Under Principle 4, it considered that the introduction was appropriate based on “the current difficulties faced by CDHB.” Under Principle 7, it considered that the complainant had failed to take account of Guideline 7a(ii) of that principle, which states:
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:
ii) a genuine expression of serious comment, analysis or opinion, or…
 TRN concluded:
We believe the Canterbury District Health Board has displayed an oversensitive reaction to this broadcast and their complaint is an attempt to stifle fair and justified debate on their difficulties.
This complaint should not be upheld.
 TRN provided the Authority with supporting reports from The Press.
 In its final comment to the Authority, CDHB stated:
[The host] did not use research as a basis for his comments, but relied on stories in the local newspaper. It was not correct at the time to say that the CDHB had a ‘financial shambles’ and it is not correct to say it now. To take the CDHB from a $21.5 million deficit to breakeven in three years speaks for itself.
 CDHB continued:
We reiterate that most of [the host’s] comments were general, lacking in objectivity, and did not contain the rider that they were his own views.
We are also absolutely clear that [the host] did not use facts and that his statements were incorrect. The CDHB is not in a financial shambles. The CDHB does not lurch from one crisis to another. We do not have poor planning. The CDHB had made provision for growth in acute demand. Evidence can be provided on each of these points.
As Chief Executive, I can state categorically, that the Board and its staff are not ‘scandalous and bloody stupid’ as [the host] said.
 CDHB did not accept that it was being “overly sensitive” or that it was attempting to stifle fair and justified debate. It wrote:
We welcome informed debate and have always been available to respond to questions and I myself have been interviewed on Mike Yardley’s show. As a government funded organisation, with a budget of $840 million per annum, we have a duty and a responsibility to keep the public well informed about health issues in our community.
 CDHB said it was disappointed that the host’s show was factually incorrect, and that the host made no effort at the time to invite its chief executive or another member of her staff to comment. CDHB repeated its view that it was not appropriate to ask the Minister of Health to respond to questions that would have been “better addressed by the CDHB.”
 CDHB concluded:
The Broadcasting Standards [Authority] may be interested to know that in her latest health report, the Minister of Health complimented the CDHB on its financial management.
 The members of the Authority have listened to a tape and have read a transcript of the item and the correspondence listed in the Appendix. The Authority determines the complaint without a formal hearing.
 Principle 4 of the Radio Code requires that “controversial issues of public importance” be discussed in a balanced way. The Authority considers that the presenter’s discussion about what he considered to be poor financial planning by CDHB and Christchurch Hospital, in light of recent newspaper reporting on the issue, was a “controversial issue of public importance”.
 The editorial comments made by the presenter on this issue were critical and his opinion was expressed strongly. He was stating his opinion about matters which were reported in the Christchurch newspaper and which had apparently been raised by Randell Allardyce, a CDHB board member.
 The Authority notes that following the presenter’s comments, telephone lines were opened for talkback. The Minister of Health was then interviewed about the matter, and commented that she did not find an assumption of no growth in acute demand surprising. The Authority also notes that, in light of the CDHB’s acknowledgement that its Chief Executive had been listening to the programme, a representative of the CDHB could have called in and clarified the situation from CDHB’s perspective, but this opportunity was not utilised. Furthermore, the Authority accepts that the presenter’s manner is well-known to his audience, and the remarks he made were not atypical in the context of talkback radio generally.
 The Authority considers that the broadcaster made reasonable efforts and gave reasonable opportunities for other significant views to be presented on a legitimate topic for discussion. The Authority also considers that the presenter’s comments constituted an appropriate introduction to the programme. It therefore concludes that Principle 4 is not breached.
 Principle 6 requires that broadcasters be truthful and accurate on points of fact. Guideline 6c also requires that “factual reports” on the one hand, and “opinion, analysis and comment” on the other, must be clearly distinguished.
 CDHB complained that a number of the presenter’s comments were inaccurate, general and lacked objectivity and were not clearly identified as the presenter’s views.
 As to the claims of inaccuracy, the Authority notes that TRN provided the presenter’s source material for his comments, pointing to several articles in “The Press”. While the Authority notes that it is always best practice for facts in news and current affairs items to be independently verified, it accepts “The Press” reports as a reasonably credible and obvious source for material to use in the context of this discussion of a topical local issue during a talkback programme.
 The Authority also notes that most of the comments made in the presenter’s introduction to the talkback debate were clearly his opinion, to which the requirements of Principle 6 do not apply. As noted above in para , that opinion was strongly framed and clearly critical of the CDHB, but the only points of fact advanced by the presenter were that:
 Both the statements of fact made by the presenter are supported by statements made in newspaper articles on the issue provided by TRN. The Authority requested CDHB to provide information in support of its claim that the item was inaccurate. Although it provided further information about the first statement, CDHB did not provide any evidence to substantiate its claims that the second statement was inaccurate. In this circumstance, the Authority finds that Principle 6 was not contravened in relation to the second statement.
 In relation to the first statement, CDHB explained that “acute demand is funded through the increase in volume built in on an annual basis”. Therefore, the starting point for its acute care budget is actual performance for the previous year. Further, it explained that any potential increase in acute demand is budgeted in a “risk reserve” item, which for the year to June 2004 was approximately $2.8 million. The reserve calculation took into account such factors as population growth.
 The Authority notes that the CDHB budget itself is complex, highly detailed and not easily accessible to a layperson. However, the presenter’s statement about acute demand provision, although sourced from reports in “The Press”, did not give an accurate picture of the planning undertaken by CDHB. Accordingly, the Authority finds that Principle 6 was breached.
 CDHB alleged that the presenter expressed inflammatory opinions which were not backed up by fact. The Authority does not agree that the presenter’s comments were socially irresponsible. His comments were based on facts asserted by a source which, while it was not independently verified, was both credible and obvious, and they were made in the context of a balanced discussion on a spirited talkback radio show.
 The Authority finds that Principle 7 is not breached.
 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 by The Radio Network Ltd of an item on Mike Yardley Mornings on 29 April 2004 breached Principle 6 of the Radio Code. It does not uphold any other aspect of the complaint.
 Having upheld a complaint, the Authority may make orders under ss.13 and 16 of the Broadcasting Act. It has decided not to do so in this case.
 The Authority does not consider this to have been a breach for which an order is required. First, the presenter’s comments were primarily his own opinion, based on reports in “The Press”, and were designed to elicit comment on a topical issue in a talkback forum. Second, CDHB could have mitigated the situation by taking the opportunity to participate in the open line discussion.
 Accordingly, having considered all the circumstances of the complaint and taking into account the above matters, the Authority concludes an order is not appropriate.
Signed for and on behalf of the Authority
4 November 2004
The following correspondence was received and considered by the Authority when it determined this complaint: