BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint
3 News Special – interview with Prime Minister broadcast on 10 July – canvassed allegations in "Seeds of Distrust" by Nicky Hager published that day – claimed that Government was aware of accidental distribution of GM contaminated seeds – unfair and inaccurate – application by broadcaster for hearing

Findings
Application declined

This headnote does not form part of the decision.

INTERLOCUTORY DECISION

The Background

[1] Detailed claims from the book "Seeds of Distrust", written by Nicky Hager and published on 10 July, were put to the Prime Minister by interviewer John Campbell during a 3 News Special broadcast at 7.00pm on the same day. The interview had been recorded the previous day (9 July). The book, which was not mentioned during the interview, alleged that the Government was aware of the accidental distribution of GM contaminated seeds and had allowed the seeds to be grown, harvested and processed.

[2] In his own right and on behalf of the Prime Minister, Mike Munro, the Prime Minister’s Chief Press Secretary, complained to TV3 Network Services Ltd, the broadcaster, that the Prime Minister had not been treated fairly during the arrangements for and during the interview. They also complained that the interview, in advancing allegations in the book as facts, breached the standard requiring accuracy. When TV3 declined to uphold the complaints, the complainants referred their complaints to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.

[3] A number of procedural issues have been raised following the referral and the Authority has not yet determined the complaints. This Interlocutory Decision responds to the most recent matter raised by the broadcaster.

The Broadcaster’s Application

[4] In a submission to the Authority dated 7 March 2003 referring specifically to the complaints from the Prime Minister and her Chief Press Secretary, TV3 expressed the opinion that the complaints raised "complex issues of fact and law". The factual issues, TV3 continued, related to confidentiality and accuracy, and the legal issues involved the interpretation and application of broadcasting standards, and the interface with the freedoms contained in the New Zealand Bill of Rights Act 1990.

[5] TV3 referred to the principles relating to hearings enunciated in Interlocutory Decision No: 2002-159 when the Authority declined an application from a complainant (Wakefield Associates) for a hearing in regard to its complaint about a broadcast by TVNZ.

[6] Expanding on its application for a hearing to deal with the factual issues in dispute, TV3 argued that a hearing was essential, and not to hold a hearing would amount to a breach of natural justice. TV3 acknowledged that the parties had made written submissions in regard to the legal issues, but contended that oral submissions were "a more satisfactory way" for the issues to be examined.

The Complainants’ Response

[7] Counsel for the Prime Minister and her Chief Press Secretary responded to TV3’s arguments in a submission dated 12 March. The submission began by noting that it was not until some nine months after the broadcast that TV3 had proposed a hearing. It then argued that the application failed to provide any particulars, that there was very little factual conflict involved in the complaints, and submitted that a hearing was not necessary.

[8] Counsel provided a chart which recorded that, on receipt of the Authority’s recent letter, 244 days had elapsed since the broadcast. He then explained that 5 days were not attributable to any party, 61 to the "necessary processes" of the Authority, 36 to the time taken by the complainants and 145 "to the actions (and inactions) of TV3". He contended that the complaints were overdue for decision but that TV3 had repeatedly raised "new technical objections".

[9] Expressing the view that there was no benefit in presenting oral legal submissions when the matters had been covered fully in writing, counsel raised the question of how the obligations of natural justice would be met unless each of the other five people who had complained about the programme also participated in the hearing.

The Authority’s Determination

[10] While it has been the Authority’s practice to determine complaints without a hearing, it has no policy not to hold hearings. It has found from its experience that the determination of complaints on the papers usually enables parties to adduce all the evidence they wish to present. Indeed, as an aspect of each determination, the Authority considers whether the parties have had an adequate opportunity, by the use of papers, to put all relevant and necessary material before the Authority. In the Authority’s view, unless there are relevant factual issues in dispute, the determination of complaints on the papers is appropriate and competent.

[11] In its general practice of determining complaints on the papers, the Authority has had regard to the provision in the Broadcasting Act (s.10(2)) that it should perform its complaints determination function with "as little formality and technicality" as permitted by the Act, having regard to the principles of natural justice. Although the Authority has the power to convene a formal hearing, it has noted (for example in Decision No: 2002-159) that it reserves the exercise of this power for occasions when hearing the parties would assist the Authority in the determination of the complaint.

[12] TV3 has argued that a hearing is necessary in this instance to deal with complex legal and factual issues.

[13] The Authority does not agree with TV3 that a hearing is necessary to deal with the issues raised by these complaints. It records that it has received comprehensive submissions from not only the complainants named above, but from all parties who have complained about the broadcast of the 3 News Special at 7.00pm on 10 July 2002. TV3’s responses have been equally comprehensive.

[14] The Authority notes that a number of procedural matters have been raised by TV3 since the referral of the complaints to the Authority and have been dealt with, respectively, in Interlocutory Decision Nos: 2002-157/158 (7 October 2002), Interlocutory Decision Nos: 2002-180/181 (7 November 2002), and Interlocutory Decision Nos: 2002-213-214 (17 December 2002). The Authority considers that it has dealt with the issues raised in a satisfactory manner.

[15] With regard to the complex issues of fact referred to in TV3’s application, the Authority is of the view that there are some matters of fact which it will not be able to determine, regardless of whether a hearing is held. As for the legal issues raised in the complaints, as recorded in the previous paragraph the Authority has been able to deal with those matters satisfactorily without the need for a hearing, and considers that it will continue to do so.

For the reasons above, the Authority declines the application for a hearing made by TV3 Network Services Ltd in regard to the complaints about the broadcast of a 3 News Special on TV3 at 7.00pm on 10 July 2002.

Signed for and on behalf of the Authority

Peter Cartwright
Chair
1 April 2003