BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaints
3 News Special – included an interview with Prime Minister – 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 unbalanced – "ambush" – TV3 argued that referral of complaint to the Authority raised new issues – not permissible under Act – Authority ruled that issues raised were not new

Findings on process now to be followed
TV3 to respond to complainants on Standard 5 (accuracy) aspects of the complaint

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 that day, were put to the Prime Minister by interviewer John Campbell during a 3 News Special broadcast at 7.00pm on 10 July 2002. 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. 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. They also sought disclosure of a range of documents.

[3] The Authority sought and obtained from the complainants comprehensive written submissions in which argument was advanced as to why the materials, for which disclosure was requested, were relevant to the referral of the complaints. The submissions included a schedule of the documents sought.

The Broadcaster’s Response

[4] The Authority then sought TV3’s submission on the complainants’ application. In its submission, TV3 argued that the material had to be limited to the relevant issues. Much of the material sought was irrelevant, it continued, given the unjustified increase in the scope of the referral when compared to the limited nature of the original formal complaints.

The Authority’s Finding on Scope of Referral

[5] In an Interlocutory Decision (No: 2002-157–158, dated 7 October 2002) dealing with the scope of the referral, the Authority ruled that all the issues raised in the referral (subject to some restrictions) were appropriately referred to the Authority.

[6] The Interlocutory Decision noted that TV3 had not responded to a number of alleged inaccuracies (complaints made under Standard 5 of the Free-to-Air Television Code of Broadcasting Practice) as they had not been detailed in the original formal complaints. In its response to the complainants, TV3 had invited the complainants to provide details. The details of the alleged inaccuracies were contained in the referral of the complaints to the Authority. In the Interlocutory Decision, the Authority ruled that the details were appropriately contained in the referral. The issue now arises as to the process under which TV3 will respond to these alleged breaches.

The Broadcaster’s Submission on the Procedural Issue

[7] Explaining that it had not had the opportunity to investigate the detailed allegations, TV3 contended that it should now be given an opportunity to do so. If it was advised that the Authority approved of this procedure, TV3 said, then it would issue a supplementary decision to the complainants within 20 working days of a ruling from the Authority on this procedural issue. The complainants, it noted, would then decide whether or not to refer the supplementary decision regarding the accuracy aspect to the Authority.

[8] It also noted that the Interlocutory Decision required a decision on the disclosure application in relation to the Standard 5 allegations and, it wrote:

… we will, as part of the Standards Committee’s investigation of the allegations recover all relevant material and be in a position to deal with this discovery issue promptly after the issue of the supplementary decision.

The Complainants’ Submission

[9] On the basis that the Authority had ruled, in the Interlocutory Decision, that the allegations in the complaint had been "appropriately referred to the Authority", the complainants asserted that TV3’s proposed procedure was inappropriate. They argued that there was no provision in the Broadcasting Act to refer the matters back to TV3. They suggested the following resolution:

There appears to be no obstacle to TV3 in its response to the referral acknowledging, if it wished to do so, that it failed to operate an adequate or complete complaints procedure; and to submit what it says would have occurred if it had proceeded correctly. The referral incorporates specific reference to the dissatisfaction of the complainants at the action taken by the broadcaster, so that such a response would be relevant.

The Authority’s Determination

[10] Section 10 of the Broadcasting Act 1989 provides:

10. Consideration and determination of complaints by Authority –

(1) The Authority may, if it thinks fit, consider and determine any complaint referred to it under section 8 of this Act without a formal hearing, but, in that case, –

(a) Shall give the complainant and the broadcaster a reasonable opportunity to make submissions to it in writing in relation to the complaint; and

(b) Shall have regard to all relevant submissions made to it in relation to the complaint.

(2) In considering every complaint referred to it under section 8 of this Act, the Authority shall provide for as little formality and technicality as is permitted by –

(a) The requirements of this Act; and

(b) A proper consideration of the complaint; and

(c) The principles of natural justice.

[11] In the interests of natural justice, the Authority accepts without hesitation that it cannot proceed to deal with the disclosure application until TV3 has had an opportunity to investigate and report upon the Standard 5 (accuracy) aspects of the complaints which the Authority has accepted as being appropriately referred.

[12] In the Authority’s view, it was unfortunate that the details of the accuracy aspects of the complaints were omitted from the original formal complaint. TV3 asked the complainants to provide the details. However, the complainants included the details sought in their referral rather than in a letter to the broadcaster.

[13] If the Authority alone were to determine the Standard 5 (accuracy) aspects of the complaints, that would deprive the broadcaster of the right to make a decision on the substance of the matters. It would also deprive the complainants of the right to decide whether to refer those matters to the Authority and, if so, to develop arguments as to why they are dissatisfied with the broadcaster’s decision.

[14] Taking into account the intention of the Broadcasting Act which sets out a procedure to enable broadcasters to consider complaints initially, and the requirements that complaints should be considered by the Authority with as little formality and technicality as is permitted by, among other things, the principles of natural justice, the Authority agrees that the Standard 5 (accuracy) aspects of the complaint should be considered by TV3 first, and that TV3 will then respond in a supplementary decision to the complainants. In making this ruling, the Authority acknowledges that the complainants’ submission has some technical merit. Nevertheless, to deny the broadcaster its right to make a formal primary decision on the detailed Standard 5 (accuracy) aspects of the complaint, would, in this instance, defeat the spirit and intent of the complaints provisions of the legislation.

[15] The Authority is concerned, however, that this additional process will unduly lengthen the time taken to conclude determination of the complaints. It notes TV3 advised that, together with its consideration of the accuracy aspects, it intended to gather all relevant material so that it is in a position to deal with the disclosure application speedily. To this end, the Authority expects TV3’s decision on the Standard 5 aspects to include its response to the complainants’ comprehensive disclosure application. Accordingly, the Authority gives notice to the parties that it intends to determine the disclosure application at its meeting on 11–12 December 2002.

For the reasons above, the Authority accepts the undertaking from TV3 Network Services Limited to respond to the complainants on the Standard 5 (accuracy) aspects of the complaint within 20 working days of the date of this decision and, at the same time, requires the broadcaster to respond to the complainants’ disclosure application.

Signed for and on behalf of the Authority

Peter Cartwright
Chair
7 November 2002