BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

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Interlocutory Decision

Complaint under section 8(1)(a) of the Broadcasting Act 1989
Interlocutory applications for disclosure of additional material and formal hearing – complainant complained about total of seven programmes on TVNZ concerning Te Tai Hauauru by-election and Māori Party

Decision on interlocutory applications
Request for production of additional information – not required in order for Authority to determine complaints – declined

Request for formal hearing – not required in all circumstances of case – declined

This headnote does not form part of the decision.

Factual Background

[1] Peter Wakeman stood as an independent candidate in the 2004 by-election in the Te Tai Hauauru electorate, which was required following the resignation of the Hon Tariana Turia from the Labour caucus.

[2] Mr Wakeman polled fourth of six candidates in the by-election, receiving 80 votes. He came in behind another independent, Tahu Nepia (183 votes), Dun Mihaka of the Aotearoa Legalise Cannabis Party (197 votes) and Tariana Turia (7,256 votes).

Complaints

[3] Mr Wakeman has complained about a total of seven programmes shown on TV One. All of his complaints concern either the coverage of the by-election on TV One or the coverage given to the emergent Māori Party at this same time.

[4] Mr Wakeman complained to Television New Zealand Ltd, the broadcaster, about the following programmes:

[5] One News, 15 June. This was an item on the forthcoming by-election. The item noted that five candidates were opposing Ms Turia, and played a very brief clip of the Aotearoa Legalise Cannabis Party candidate. Mr Wakeman alleged that the item breached Standard 4 (balance) of the Free-to-Air Code of Broadcasting Practice, in that:

• only one candidate was interviewed
• Tariana Turia was pictured, with the comment that she was the presumed winner
• it discriminated on the basis of race as only Māori candidates were shown
• TVNZ was attempting to influence the course of the by-election.

[6] Te Karere, 15 June 2004. This item focussed on the launch of the Māori Party. Mr Wakeman alleged that the item breached Standard 4 (balance) of the Free-to-Air Code of Broadcasting Practice, in that it:

• showed pictures of Tariana Turia, but not pictures of other candidates
• showed the Māori party free phone number.

[7] One News, 20 June and 9 July 2004; Eye to Eye, 1 July 2004; Marae, 4 July 2004; and Te Karere, 7 July 2004. These programmes contained the following:

• One News on 20 June contained an item on the latest Colmar Brunton opinion poll (in relation to national politics, not the by-election) which featured the Māori party for the first time
• One News on 9 July contained an item on the likely position of the Māori party in relation to prospective coalition parties following the next general election
• Eye to Eye contained a discussion among presenter Willie Jackson, MP John Tamihere, the Māori Party’s co-leader Pita Sharples, political commentator Chris Trotter and National Business Review journalist Deborah Hill Cone, focussing largely on the likely extent of Tariana Turia’s predicted majority in Te Tai Hauauru
• Marae contained, in the “Pānui” (announcements) section at the end of the show, an announcement that the launch of the Māori Party would take place the following weekend, and gave the 0800 number for the party
• Te Karere contained an item on Peter Wakeman and his campaign for the Te Tai Hauauru seat.
  [8] Mr Wakeman alleged that the above items breached Standard 2 (law and order), Standard 4 (balance), Standard 5 (accuracy), Standard 6 (fairness) and Standard 8 (programme information) of the Free-to-Air Television Code of Broadcasting Practice. In particular, he alleged the programmes:
• breached the balance standard by effectively covering only one party standing in the by-election (the Māori Party)
• breached the law and order standard, as he was not given the right to express his political position on the programme, contrary to the Bill of Rights and because his words were not allowed to remain un-translated on Te Karere (referring to Guideline 2a)
• breached the balance standard as TVNZ appeared to be camouflaging the fact that he was a Labour party member, as the Labour party had not formally put up a candidate in the by-election
• breached the accuracy standard as the programmes did not mention that he was standing in the by-election
• breached the fairness standard as Māori candidates were given more coverage than Pakeha
• breached the programme information standard as TVNZ was favouring the Māori party (guideline 8d).

[9] TVNZ declined to uphold all of Mr Wakeman’s complaints. Mr Wakeman, dissatisfied with TVNZ’s decision, referred his complaints to the Authority.

Mr Wakeman’s Procedural Requests

[10] Mr Wakeman, after referring his complaints to the Authority, made two requests. First, he requested the Authority to exercise its powers under section 12 of the Broadcasting Act to require production of all the following material:

• all by-election coverage on TV One from 16 May to 11 July 2004, including Te Karere, Breakfast, Midday, One News, Holmes, Tonight, Eye to Eye and Marae
• all by-election coverage on Radio New Zealand and Māori Television from 16 May to 11 July 2004
• a record from TVNZ of all the telephone calls he made to TVNZ
• copies of all correspondence between him and TVNZ
• copies of the transcripts TVNZ obtained from other media that complained about TVNZ’s coverage of the by-election, including talkback radio
• media releases and conversations from all candidates, parties and the government concerning the by-election, the polling booths, and “policy”
• copies of the teletext news that was displayed on page 102
• all coverage of the Māori Party and its formation.

[11] Second, Mr Wakeman requested the Authority to convene a formal hearing to hear all of his complaints.

[12] The Authority considered it appropriate for these two requests to be dealt with together.

Request for Production of Additional Material

[13] Section 12 of the Broadcasting Act enables the Authority to exercise powers under the Commissions of Inquiry Act 1908. The relevant provision of that legislation is section 4C(1) which provides:

(1) For the purposes of the inquiry the Commission … may:

(a) Inspect and examine any papers, documents, records, or things;

(b) Require any person to produce for examination any papers, documents, records, or things in that person’s possession or under that person’s control, and to allow copies of or extracts from any such papers, documents or records to be made;

(c) Require any person to furnish, in a form approved acceptable to the Commission, any information or particulars that may be required by it, and any copies of or extracts from any such papers, documents or records as aforesaid.

[14] In support of his application, Mr Wakeman submitted that the Authority needed to see the “lead in period” because it demonstrated that the programmes he complained of had “change[d] course”, that they were “going outside of a news and/or current affairs program[me]” and were “giving political party/candidate broadcast[s] that [were] free for Tariana Turia/Maori Party”.

Request for Formal Hearing

[15] Mr Wakeman did not advance detailed reasons for holding a formal hearing, other than to note that one was required because “TVNZ have not taken on board my early phone calls and letters to correct their broadcasts”. Mr Wakeman also noted that he wished to produce additional evidence at the hearing and that he wished to question “some TVNZ staff” although he did not provide details.
TVNZ’s submissions regarding procedural requests

[16] TVNZ did not agree either that production of the additional material or a formal hearing was required. In relation to the request for the production of additional material, it noted:

Mr Wakeman considers that our News and Current Affairs programmes, and some others such as Eye to Eye and Marae, should have featured him more extensively in stories covering the recent by-election and in stories concerning the emergence of the Māori Party. With respect to Mr Wakeman it is not TVNZ’s responsibility to provide free publicity for by-election candidates in its news, current affairs, and other factual programmes. It is the role of these programmes to report items of news, and provide a current affairs perspective on matters of current interest to viewers. The rise of the Maori Party was clearly one such matter, and remains so with weekend polls suggesting that it could gain a number of extra seats to that already held by Tariana Turia MP.

[17] TVNZ concluded:

The quantity of additional material Mr Wakeman considers the Authority should order TVNZ to produce is clearly not required, and will not assist the Authority in considering these complaints. We do not dispute that Mr Wakeman did not appear in many of the items he refers to.

[18] In relation to the request for a formal hearing TVNZ submitted that all the information required to enable the Authority to determine the complaints could be provided in written form. TVNZ noted that there was no conflict of evidence to necessitate examining witnesses in person.

Complainant’s Response to the Authority

[19] In response to TVNZ’s submissions, Mr Wakeman informed the Authority that he had made a number of requests under the Official Information Act 1982, to agencies such as Te Mangai Paho, Radio New Zealand and New Zealand On Air, and that he “did not wish to respond until the additional material requested is considered by the Ombudsmen”. He made no further elaboration as to what information had been sought or in what way it was relevant to the procedural requests he had made of the Authority.

[20] The Authority did not agree that consideration of these procedural matters needed to be delayed until such time as Mr Wakeman’s requests for the production of official information had been considered by the Office of the Ombudsmen. There was no information before the Authority to suggest that the two matters were linked, and accordingly the Authority proceeded to consider the two requests from Mr Wakeman, for production of additional material and for a formal hearing.

Authority's Determination

[21] The members of the Authority have viewed tapes of all the broadcasts complained about, and read the correspondence listed in the Appendix.

Request for production of additional material

[22] Mr Wakeman has requested the production of extensive additional material, upon grounds which can only be described as vague. His request appears to be predicated on the basis that during the period leading up to the by-election, TVNZ had little coverage of Mr Wakeman personally, in contrast to considerable coverage of the Māori Party and Māori candidates contesting the by-election.

[23] The Authority may require production of additional material only in the event that the material is required in order to properly determine a complaint, which must be about an individual broadcast.

[24] In the present case, Mr Wakeman appears to be requesting the additional material for the purpose of demonstrating a pattern of TV One’s overall coverage of the by-election favouring Māori candidates and the Māori Party. The Authority considers that Mr Wakeman has provided no information to suggest that the additional material sought is relevant to the application of the Code of Broadcasting Practice to the seven individual broadcasts.

[25] Equality of coverage of political candidates is not an issue in respect of which the Authority has jurisdiction – as it is not covered by the Code of Broadcasting Practice – and it is not relevant to the Authority’s assessment against the nominated broadcasting standards of the seven broadcasts Mr Wakeman has complained about.

[26] Furthermore, having reviewed Mr Wakeman’s complaints and having viewed the broadcasts complained of, the Authority considers that it has more than adequate information to assess the individual broadcasts against the nominated broadcasting standards. It does not consider that additional material is required.

[27] For these reasons, the Authority declines the complainant’s request to order production of additional material.

Request for formal hearing

[28] Mr Wakeman has also requested the Authority to convene a formal hearing in respect of his complaints. His reasons for requesting a formal hearing appear to be predicated on a concern that up until this point, TVNZ has not responded appropriately to his complaints.

[29] It is the usual practice of the Authority to determine complaints on the papers, after both complainant and broadcaster have been given appropriate opportunity to make submissions. In adopting that general practice, the Authority has regard to section 10(2) of the Broadcasting Act 1989, which states that complaints should be determined with “as little formality and technicality” as is permitted by the Broadcasting Act, the proper consideration of the complaint and the requirements of natural justice.

[30] However, the Authority has no formal policy not to hold hearings, and faced with an appropriate case would undoubtedly convene one.

[31] The question for the Authority in determining a request for a formal hearing is whether hearing the parties would assist the Authority in determining the complaint. In assessing this question, the Authority may take into account the following matters:

• Whether there are any complex issues of fact that could best be understood by hearing witnesses.
• Whether there are issues of credibility of witnesses that can best be determined by examining them in person.
• Whether the complaint concerns complex legal issues that can best be addressed through oral submissions and argument, and the questioning of parties or their legal counsel.
• Whether the issues under consideration are matters of broad principle or general public interest.
• Whether there are special circumstances relating to the complainant meaning that they cannot fairly be expected to make submissions in writing.

[32] The Authority does not consider that any of these grounds apply to the present case. Mr Wakeman’s complaints do not involve complex issues of fact, and there appears to be little, if any, discrepancy between the parties as to the relevant issues of fact.

[33] Nor do the complaints concern complex legal issues that require oral submissions, argument or discussion; to the contrary, the Authority considers the issues for determination are apparent, and involve application of the relevant Code of Broadcasting Practice to the broadcasts complained of rather than any wider or more complex legal issues.

[34] While the by-election itself was a matter of considerable public interest, the Authority does not consider that the complaints in the present case raise important matters of general principle about broadcasting standards such that a hearing of these issues is required.

[35] Finally, there appear to be no circumstances relating to the complainant suggesting that he is unable to present written submissions in support of his complaint. The Authority notes that to date Mr Wakeman has made lengthy submissions in writing in relation to his complaints.

[36] For the above reasons, the Authority does not consider that this is a case in respect of which a formal hearing is required. The Authority is satisfied that the issues for consideration can be appropriately and fairly addressed through written submissions.

For the above reasons declines the complainant’s request for:

(a) production of additional material pursuant to section 12 of the Broadcasting Act 1989; and

(b) a formal hearing of his complaints.

Signed for and on behalf of the Authority

Joanne Morris
Chair
4 November 2004

Appendix

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

1 Peter Wakeman’s first formal complaint to Television New Zealand Ltd – 16 June 2004

2 Mr Wakeman’s second formal complaint to TVNZ – 6 July 2004

3 Mr Wakeman’s third formal complaint to TVNZ – 22 July 2004

4 TVNZ’s acknowledgement of first formal complaint – 17 June 2004

5 TVNZ’s response to first formal complaint – 7 July 2004

6 TVNZ’s response to second formal complaint – 26 July 2004

7 TVNZ’s response to third formal complaint – 20 August 2004

8 Mr Wakeman’s first referral to the Authority – 3 August 2004

9 Mr Wakeman’s second referral to the Authority – 23 August 2004

10 Mr Wakeman’s additional letter to the Authority (relating to first referral) – 4 August 2004

11 TVNZ’s response to the first referral – 18 August 2004

12 TVNZ’s response to the second referral – 9 September 2004

13 Mr Wakeman’s formal requests for production of additional material and formal hearing (relating to all complaints) – 1 September 2004

14 TVNZ’s submissions on Mr Wakeman’s requests for production of additional material and formal hearing (relating to all complaints) – 6 September 2004

15 Further correspondence from Mr Wakeman (relating to all complaints) – 9 September 2004

16 Further correspondence from Mr Wakeman (relating to all complaints) – 17 September 2004