BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

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Summary

Some trees lining Palmerston North's Fitzherbert Avenue were felled on 6 January

1997 to enable the road to be widened to four lanes. Other trees were cut down on 8

January. The decision by the Council to remove the trees was a matter of

considerable public interest in Palmerston North and a local station, Classic Hits ZA-

FM, broadcast from the site between 6.00am–6.00pm on 6 January 1997. The

events on 8 January were dealt with in news bulletins.

The Palmerston North City Council complained to The Radio Network of New

Zealand Ltd, the broadcaster, that the broadcast on 6 January was unbalanced. It was

concerned that the presenters had encouraged and assisted people to demonstrate and

protest against the removal of the trees. It also complained about a number of news

bulletins, and in particular the noon news bulletin on 8 January which, it claimed,

contained inaccuracies which suggested wrongly that the Police were preparing for a

Springbok Tour-like confrontation with the protesters.

Maintaining that the broadcast on 6 January had presented a range of views and, in

fact, had discouraged people from joining the protest, the Radio Network declined to

uphold that complaint. It declined to uphold all aspects of the complaint about the

news bulletins other than the aspect of the complaint about the 8 January item which

the Network accepted was inaccurate when it referred to about 100 police officers,

rather than 70.

Dissatisfied with the broadcaster's decision, the PNCC referred the complaints to the

Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989. It

also complained that the broadcaster had not retained a tape of the full broadcast on 6

January 1996.

For the reasons below, the Authority upholds the complaint which referred to the

broadcaster's failure to keep a logging tape for thirty five days. The Authority declines

to uphold all other aspects of the complaints.

Decision

The members of the Authority have listened to parts of the broadcast complained

about, read a transcript of those and other parts, and have read the correspondence

(summarised in the Appendix). In this instance, the Authority determines the

complaint without a formal hearing.

Background

Plans to widen Palmerston North's tree-lined Fitzherbert Avenue have been talked

about since the 1960s. A concern for the trees has been an important part of the

discussions and, in 1996, a hearing commissioner ruled that the Palmerston North City

Council (PNCC) had the right to remove protection from the trees and proceed with

the construction of a four lane road. It was a controversial decision.

Because of the expected removal of the trees on 6 January 1997, local station Classic

Hits ZA-FM decided to broadcast from Fitzherbert Avenue. It was based there from

6.00am–6.00pm, during which time it interviewed a number of people who were

present, and reported on the action of the PNCC when it cut down a number of trees

during the afternoon. Other trees were cut down on the 8 January. Classic Hits

covered this by way of news bulletins.

The Complaints

In two separate complaints, PNCC City Manager (Michael Willis) complained first

about the full day's coverage, and secondly, about a number of news bulletins

broadcast on 6 and 8 January 1997.

The substance of the first complaint, the PNCC wrote, was that:

... the Classic Hits Radio Station actively encouraged and assisted people to

demonstrate and protest against the removal of the trees. Staff on the station,

at various times during the day, assisted people to climb trees, issued May

Day calls from their broadcast van, and generally encouraged people to come

down to the site.

The Council's concern is also that, particularly during the morning, the radio

station treated the situation almost as a fun event, something that everyone

should come along and enjoy. For a time, one of the station's regular

announcers was actually sitting in a tree.

Further, during the day, two hourly news broadcasts were cancelled in favour

of continued live broadcasting from the site. Media releases were being given

by the Council at this point. Cancelling the hourly news meant that there was

no reporting of the Council's news on the matter at a critical point in the day's

developments. This is scarcely balanced reporting.

In summary, the PNCC stated that, given the entertainment format, the station seemed

more intent on creating news rather than reporting it.

The complaint about the news bulletins covered a number of broadcasts on 6 January,

and one on the 8th. As the news bulletin broadcast at midday 8 January was the only

one referred to the Authority, it is the only one dealt with by the Authority in this

decision. (The others are canvassed in the Appendix).

The PNCC complained that the bulletin on the 8th was incorrect when it referred to

"100 police with long batons and dogs" who confronted 200 protesters in angry

scenes. At 12:45pm, the Council recorded, the Police Officer in charge, Inspector

David Scott, was asked to comment on the bulletin. He advised the PNCC that the

area was cordoned off, that 70 police were in attendance, as were between 30 - 60

protesters, and that there were no angry scenes. There were no dogs deployed and the

police on duty who were dog handlers kept their dogs in their vans. Police were

wearing long batons - standard practice in situations of anticipated crowd control - and

there had been seven arrests for obstruction.

In contrast to the news bulletins which "conjured mental images akin to the Springbok

Tour", the Council said that it was a situation involving mainly peaceful protest and

the only confrontations were between individual protesters up trees and the police.

The PNCC sought a retraction and public apology for the item.

The Standards Raised by the Complaints

The complaints were assessed under the following standards in the Radio Code of

Broadcasting Practice – R1, R6, R9, R15 and R16.

The first three require broadcasters:

R1   To be truthful and accurate on points of fact in news and current affairs

programmes.

R6   To respect the principles of law which sustain our society.

R9   To show balance, impartiality and fairness in dealing with political

matters, current affairs and all questions of a controversial nature, making

reasonable efforts to present significant points of view either in the same

programme or in other programmes within the period of current interest.

The other two read:

R15  Listeners should always be able to distinguish clearly and easily between

factual reporting on the one hand, and comment, opinion and analysis on

the other.

R16  News must be presented accurately, objectively and impartially.

The Broadcaster's Response to the Complaint

In its assessment of the complaints, the Radio Network began by objecting to PNCC's

statement that the bulletin items were deliberately "crafted" in such a way as to give

listeners an impression unrelated to the actual events. As that comment did not allege

a breach of a specific standard, the Network said it had not been considered under the

Radio Code. However, strong exception was taken to the remark and the Network

reported that it was considering seeking legal advice.

The Network declined to uphold all the matters raised in the complaint other than it

accepted that it had been inaccurate to report that there were 100 police present –

rather than 70 – on 8 January.

In its discussion on the complaint which referred to the day-long coverage, the

Network recorded that there was a gap in the programme log recordings. It explained

that Classic Hits, a music station, did not warrant continuous log recording, and

although arrangements had been made for a recording of the day's events on the 6th,

that had no longer occurred after the technical staff in the early shift were replaced.

Because of this, the broadcaster on-the-spot and the Station Manager completed

reports about the content of the day's broadcasts.

Dealing with the complaint about the day-long coverage on the 6th, the Network

distilled the matters which it accepted alleged a breach of standards. In response, it

wrote:

* rather than encourage people to protest, the station discouraged "rubber-

neckers";

* the Mayor, a councillor (advocating removal) and the senior police officer

were interviewed during the day, and were aware of the broadcast; and

* the Council had a reasonable opportunity to put its views across.

On the other matters relating to the broadcast on the 6th which the Network

considered relevant to the extent that the Radio Code referred to "the preparation" of

programmes:

* the allegation that Classic Hits encouraged people to come down was:

... quite unsubstantiated and is directly contradicted by statements

obtained from the station, and solidly backed up by recordings of the

eye-witness reports.

* that as other media were present, the escalation of crowd numbers could

not be blamed on Classic Hits;

* that both the protesters and the police used the station's PA system for

crowd control;

* that station staff were not responsible for the "mayday" calls; and

* that the station's co-host was in a tree seeking human interest "angles" and

it was understood that she would descend immediately if required to do so

by the police.

Further comments from the Network are included in the Appendix, as is its response

to the complaint about the news bulletins on 6 January. As for the complaint about

the item at midday on 8 January, the Network accepted that the police comment that

only 70 were present, rather than the 100 described in the bulletin, amounted to a

breach of the accuracy requirement, but it did not uphold any other aspect.

Further Correspondence

On receipt of the Network's report, the PNCC sought a copy of the tapes which were

available and a copy of the reports from the Station staff which had been considered

by the Network in reaching its determination of the complaints.

This material was supplied and transcripts of the tapes (from about 6.00 - 9.30am and

from about 4.00–6.00pm) were included in the PNCC's referral to the Authority.

PNCC's Referral to the Authority and Subsequent Correspondence

The referral focussed on three specific matters. First, it was alleged that the broadcast

on Classic Hits ZA-FM between 6.00am and 6.00pm on Monday 6 January breached

standard R9. Secondly, that the noon news bulletin on Wednesday 8 January

breached standards R1 and R16. Finally, it was argued that the Network had breached

standard R35. It provides:

R35  For a period of 35 days after broadcast, radio stations shall hold a

recording of all talkback and open line programmes and a copy or tape of

news and current affairs items.

In support of its complaint about the unbalanced approach taken by the station during

the day-long broadcast, the PNCC quoted extracts from the transcript which indicated,

it said, that the co-hosts on Classic Hits had treated the event in a partisan way, and

an extract which gave the events an aura of entertainment. The hosts had suggested,

the PNCC argued, that people should come down to Fitzherbert Avenue and it was

apparent that the hosts supported the protest.

The news item at midday on 8 January, the PNCC repeated, inaccurately painted a

picture of the police dogs and "baton-wielding police officers" clearing protesters from

the area.

The PNCC also sent the Authority a copy of a letter signed by D K Scott, Acting

Police District Commander, who in part commented about events on 6 January.

On the day concerned, I did hear "Classic Rock" Radio broadcasting from

Fitzherbert Avenue, speaking to the "tree people" and encouraging people to

support the event. It rapidly turned into a carnival. People arrived to witness

the spectacle, whilst others felt empowered to join in.

And:

On 9 January 1997, I had a meeting with Mark Bunting of "Classic Rock", who

was concerned about the Council's reaction to the programme in question, and

wished to know the Police point of view. I advised him I had not heard the

"mayday" call, but was concerned that perhaps there had been an attempt to

make news rather than report it. That any complaint would need to be

supported by tapes of the incident or witnesses. He advised me that there were

no tapes with the "mayday" call as such a broadcast was not made.

Emphasising the background to the broadcast and the controversy following the

Council's decision to remove mature plane trees, the Network maintained that the

broadcasts complained about did not breach standards R1, R9 and R16. The

comments and observations on 6 January, it wrote, were not inflammatory but were in

good humour.

As for the alleged breach of standard R35, the Network pointed out that it had

acknowledged the gap in the programme log recordings. Reiterating that the Classic

Hits format did not warrant a continuous recording facility, the Network said its

Complaints Committee had recommended reviewing the arrangements to ensure that

recordings complied with the requirements in the Radio Code. It questioned whether a

breach of standard R35 was raised at this stage not so much because of the technical

requirements in the specific standard, but as part of the PNCC's dissatisfaction with

the Network's decision on the substance of the complaints.

The Network dealt with each quotation from the transcript which had been cited in

support of the complaint, denied that they carried the implications given to them by

the complainant, and argued that the quotations had been advanced selectively. It also

firmly rejected the allegation that Classic Hits had been responsible for the "mayday"

call.

Overall, the Network expressed the belief that it was being unfairly singled out for

attack and, given the right of New Zealanders to express opinions freely, suggested

that the PNCC might have got the issue out of proportion.

In its final comment to the Authority, the PNCC said it found little of consequence in

the Network's response to the referral. In reply to the statement about free

expression, it wrote:

The Council accepts without reservation the right of New Zealand citizens to

express their views freely. At the same time, nonetheless, there is an obligation

on media to report news events fairly and not to act in such a manner as to

become a participant in a protest or facilitate protest activities. We believe that,

in this matter, the Radio Network did not respect this obligation.

The Authority's Findings

Both the complainant and the broadcaster have referred to the background of the

complaint, and the extent to which the fate of the plane trees in Fitzherbert Avenue

have become controversial matters in Palmerston North. The events there on 6

January were covered by the media throughout the country.

The question of the style of the broadcast goes to the heart of the PNCC's complaint.

It is apparent that the PNCC expected a style consistent with that of stations which

offer regular news coverage within familiar parameters. This was not to be the case.

The station complained about, Classic Hits ZA-FM, is both a music station and a

community station and does not normally offer news coverage of this type. Thus, the

style of its coverage on 6 January was unpredictable. In the event, it elected for a

style of reportage that combined elements of traditional news coverage with

entertainment, a style consistent with the station's usual tone. While this would not

excuse a breach of standards, it is a factor in understanding the context of the

complaints.

There is one comment from the transcript which, in the Authority's opinion, aptly

reflects this style which fuses news and entertainment, with entertainment and news,

and records the station's approach to the events on 6 January. At about 4.20pm,

presenter Mark Bunting stated:

We've had people with varying opinions which is a very healthy sign. We've

had people saying oh you know people obviously upset with the way things are

going. There are people who are saying, hey you know, cut the trees down. We

put you up a tree, and Ricky up a tree and got lambasted for being one sided so

people are obviously feeling pretty, pretty dear about this. I mean really all

we've tried to do is ah bring you the information, informing in a relatively

entertaining way if you can about an issue like this.

The PNCC complained that the co-host climbed up one of the trees. However, the

Authority does not regard her broadcast comments as ones which breached the

standards cited. Her observations made it abundantly clear that her actions were part

of her role as a presenter, and not as a protester.

Nevertheless, it notes that there were a few specific remarks made by the presenters

which it considers verged on the limit of what may be acceptable from a community

station, and which came close to adopting an interested position. For example, at

about 7.15am, host Mark Bunting stated:

We're down here at Fitzherbert Avenue in between Te Awe Awe and the bridge

ah the trees that are due to be cut down have green crosses spray painted on

them. If you'd like to come down and lend your support or voice your opinion

down here, hey this is Palmerston North that's what the town is all about - it is

a knowledge city after all.

A little later he said:

Good morning it is half past seven at Classic Hits good morning. Um, well it's a

nice day I've gotta say you've probably deduced that yourself but it is a really

beautiful day and it's a nice day for a protest, now we've got lots of different

points of view down here which is very interesting.

But, to the Authority, these comments have to be weighed with other remarks which

actively discouraged listeners from coming to the site.

Viewed overall, the Authority does not accept that the comments made, or the tone of

the broadcast, breached the relevant standards. The Authority accepts that the

approach, rather than transgressing the standards, reflected the fact that the presenters

were not news journalists.

The Authority shares the PNCC's concern about the "mayday" call. That was

unacceptable. However, given the Network denial that it came from Classic Hits, and

given that a tape is not available, the Authority is not able to rule on this aspect.

In respect to the PNCC's complaint about the midday news item on 8 January, the

Authority notes the inaccuracy which the broadcaster has already accepted. A second

aspect of this part of the complaint alleged that the language used "paints a picture of

police dogs and baton-wielding police officers clearing the area of protesters". The

Authority is of the view that the language used was equivocal. It is not prepared to

find that there has been a breach of standards R1 or R16.

The PNCC is justifiably aggrieved that a continuous programme log was not available.

The Network implicitly acknowledges that it involved a breach of standard R35. The

Authority makes the point explicitly. The absence of a tape of the broadcast by

Classic Hits ZA-FM for the full period 6.00am–6.00pm on 6 January was a breach of

standard R35.

For the reasons given above, the Authority upholds the complaint that the

omission of a continuous log tape recording the broadcast by Classic Hits ZA-

FM between 6.00–6.00pm on 6 January 1997 breached standard R35 of the

Radio Code of Broadcasting Practice.

It declines to uphold any other aspect of the complaints.

Having upheld a complaint, the Authority may impose an order under s.13(1) of the

Broadcasting Act 1989. The absence of a tape means that the serious allegation

regarding the "mayday" call cannot be determined. The Authority notes the

Network's explanation and it is mindful of the fact that continuous logging for a

station such as Classic Hits ZA-FM is not normally required. But where as here, the

station elected to become involved in live broadcast and coverage of a controversial

event, it must face the consequences if it has not first put its house in order.

After carefully weighing up the arguments, the Authority has decided not to impose

an order on this occasion. It notes the action which the broadcaster has taken and

concludes that no further action is necessary on its part to reinforce the importance of

compliance for the future.

Signed for and on behalf of the Authority

Sam Maling
Chairperson
7 August 1997

Appendix

Palmerston North's City Council's First Complaint to The Radio Network of

New Zealand Ltd – 8 January 1997

Michael Willis, City Manager with the PNCC, complained to The Radio Network of

New Zealand Ltd about the programme broadcast on Classic Hits ZA-FM in

Palmerston North between 6.00am–6.00pm on Monday 6 January 1997. The

programme, he wrote, related to the removal of trees from Fitzherbert Avenue by the

Council and the actions of protesters in attempting to prevent the removal of those

trees. Mr Willis complained that the broadcast breached the requirements in s.4(1)(b)

and s.4(1)(d) of the Broadcasting Act 1989, and standards R6, R9, R15 and R16 of the

Radio Code of Broadcasting Practice.

The basis of the complaint, Mr Willis said, was that Classic Hits ZA-FM "actively

encouraged and assisted people to demonstrate and protest against the removal of the

trees". Station staff, he continued, encouraged people to come to the site and assisted

them to climb trees, and he explained:

The Council's concern is also that, particularly during the morning, the radio

station treated the situation almost as a fun event, something that everyone

should come along and enjoy. For a time, one of the station's regular announcers

was actually sitting in a tree.

Further, during the day, two hourly news broadcasts were cancelled in favour of

continued live broadcasting from the site. Media releases were being given by

the Council at this point. Cancelling the hourly news meant that there was no

reporting of the Council's news on the matter at a critical point in the day's

developments. This is scarcely balanced reporting.

Because of the way the station staff approached the event, he concluded, the language

used was that of entertainment rather than factual reporting. Indeed, the station

seemed more intent on creating news rather than reporting it.

Palmerston North's City Council's Second Complaint to The Radio Network of

New Zealand Ltd – 14 January 1997

City Manager Michael Willis complained about the news bulletins broadcast by The

Radio Network on Monday 6 January and Wednesday 8 January. He wrote:

PNCC believes these items were factually incorrect, but more importantly were

crafted in such a way that a listener who heard the broadcast was likely to

conjure mental images of a scene quite unlike the one that took place. The items

thereby misrepresented events.

The coverage of the tree felling operation on Wednesday 8 January, he wrote,

suggested that about 100 police with batons and dogs confronted 200 protesters in

angry scenes. However, Council staff had confirmed with the Police that the area was

cordoned off, that 70 police wearing long batons (without dogs) were in attendance,

that protesters numbered 30 - 60 during the morning, that there were no angry scenes,

and that there were seven arrests for obstruction. While scenes akin to the Springbok

Tour in 1981 were conjured up by the bulletins, a largely peaceful protest occurred

and the only confrontations involved the police and individuals up trees.

The Council believed a retraction and apology were appropriate.

With regard to the bulletin broadcast at midday on 6 January, Mr Willis said it was

reported that "the Council had given protesters an ultimatum". However, the Council

did not at the time issue protesters with ultimatums and a correction was sought.

Mr Willis concluded:

I am extremely sorry to have to make these complaints. The city council has

always enjoyed an open and positive relationship with local news staff

employed by the Radio Network.

However, the Council is facing intense criticism, not so much of its decision to

fell the trees, but of the way "the situation was handled". Reports broadcast by

the Radio Network paint a "word picture" of events that did not occur in the

way described and I seek a public clarification and apology.

Further Correspondence

The Radio Network's initial response to the complaints, dated 22 January 1997,

questioned whether it was intended for the 14 January letter to be a "formal"

complaint. The Radio Network said it would be necessary to take the full 40 working

days to respond to the first complaint in view of the matters raised.

In its reply (dated 10 February), the Council expressed its opinion that it was clear

that the letter of 14 January was meant to be a formal complaint. It acknowledged

that no specific standards were cited, and said breaches of standards R1, R9, R12, R13

and R16 were alleged.

The Radio Network's Response to the Formal Complaints – 20 March 1997

Explaining that the assessment of the complaints had involved a considerable amount

of time, The Radio Network objected strongly to the allegation that the news items

were "crafted" to give listeners an impression unrelated to actual events.

In summary, the Network said it had declined to uphold all aspects of the complaint

other than the aspect which complained that the items were inaccurate when reporting

the number of police who were present.

In its detailed response, the Network divided the complaint into the live broadcast on

the site and the news bulletins. When considering the live broadcast, the Network

assessed the complaint under the standards nominated but omitted the allegations

which, it said, did not refer to the actual content of the broadcast. On that basis, it

decided that the allegations about how the station's van was used were outside the

formal complaints process.

As the complaint said that the Station actively encouraged the protest, the Network

said it involved an issue of some importance and pointed out that the broadcast

advised people to stay away to avoid congestion, and to rely on radio coverage. The

[Network's] Complaints Committee concluded on this point:

The Committee rejected the suggestion that the eye-witness accounts of the

day's events incorporated any encouragement to "rubber-neckers" (a phrase

actually used in broadcasts suggesting that people stay away). The Committee

was also surprised that, in view of the high public profile of the whole matter of

the trees, the complainant appeared to imply that it was Classic Hits which was

largely responsible for protest demonstrations and the presence of others at the

day's events.

The Network in addition pointed out that legal protest was the right of citizens.

In view of these conclusions, the Network declined to uphold the alleged breaches of

s.4(1)(b) and standards R15 and R16.

The Network considered that standard R9 had not been contravened for the following

reasons. First, the lack of balance in the paid advertising relating to the issue occurred

because the Council cancelled the booking it had earlier requested. Secondly, during

the day, the Mayor, a Councillor and Mr White of the Police were interviewed, and

the Network noted:

In view of the "live" interviews of the Mayor and a Councillor, the Complaints

Committee concluded that the presence and location of the Classic Hits staff and

facility was known, and that therefore the condition required by the

Broadcasting Act's statement of the R9 principle (ie that the provision of

reasonable opportunity would satisfy the requirement) was, in fact, met. The

Committee did not consider that the "period of current interest" in the tree-

cutting was so short as to be a factor in the consideration, and therefore decided

that the conditions for balance were met, in terms of actual presentation and in

terms of reasonable opportunity.

On the basis that the Radio Code refers to both the preparation and presentation of

programmes, the Network took into account some of the other matters raised in the

letters of complaint, under the following headings.

Active Assistance

Describing this aspect of the complaint as "quite unsubstantiated", the Network noted

that the presenter, particularly after noon, had advised people on several occasions to

stay away.

Encouragement to Attend

In view of the coverage given in the media to the Council's decision to fell the trees,

the Network did not consider that it was either justifiable to single out Classic Hits, or

to blame it for the escalation of crowd numbers.

Use of Station PA Facility

The Network recorded that the station's van's public address facility was used not

only by a protest leader, at the request of the police, to control the "core protesters",

but also by the Police themselves as assistance in crowd control.

Other Electronic Media

It was pointed out that three other radio stations were present at the site and that one

had operated a barbecue to feed protesters. It was not known whether formal

complaints had been made about their coverage.

Published Allegations

The Network considered that the City Manager's statement criticising an aspect of

The Radio Network which was published in the print media was unjustified.

Further Informal Points in the Complaint Letter

Under this heading, the Network denied that Classic Hits treated the matter as a "fun

event". The reporter was in the tree to report human interest angles and it was

understood that she would descend if required to do so by the Police. The Network

wrote:

Again, the Committee was of the view that this was a local coverage decision

which the station was entitled to make, a decision which had nothing to do with

condoning or condemning the protest.

The staff had not, as alleged, "assisted people to climb trees" but had been involved in

preventing one fall.

News Releases: Balance

Turning to the aspect of the complaint that the absence of two normally scheduled

news bulletins led to unbalanced reporting, the Network noted that the announcer, at

about 4.00pm, included real-time actuality of trees being felled and advised people,

especially children, not to attend in order to avoid congestion. The Council's

statement at 4.15 released to the Studio, about the use of the timber, was relayed to

the Classic Hits site at the Avenue and broadcast. The station's news staff were also

at the site and were involved in filing coverage to Wellington. The Network considered

that the Council staff would have been aware of this and would have been able to

deliver releases to both the Avenue and the Classic Hits office.

The Network wrote:

The Committee was unable to accept that the decision to continue the on-the-

spot-report over the 5pm bulletin time resulted in unbalanced reporting. It

considered that there was an opportunity for the delivery of the Council's

statements of which Council staff failed to take advantage, and is moreover

satisfied that Classic Hits was fully entitled to make immediate decisions in a

fluid situation about its own programming.

In summary, it stated:

After having carefully evaluated and discussed the extensive information

available to it, the Committee categorically rejects the suggestion that Classic

Hits was intent more on creating news than reporting it. ...

The Committee also took note of a Station announcement (repeated three times

on air on 8 January) which recognised the Council's media statement of the 7th

in which Classis hits was stated to have actively encouraged and assisted people

to demonstrate. The announcement said the reporting had been undertaken to

inform people of a major issue affecting them, and apologised if anyone or the

Council had placed a different interpretation on it.

The Network then dealt with the second complaint which was contained in the letter

of 14 January.

As for the complaint about the broadcast of 6 January, the Network reported the

normal dictionary meaning of the word "ultimatum" and said that the word was

legitimately be used to summarise the situation outlined in the complaint.

In regard to the bulletins on 8 January, the Network noted that batons were worn and

that dogs were present in police vans. However, accepting Inspector's Scott's

statement that 70 police were present, The Network accepted that the reference to

"about a hundred" contravened the requirement for accuracy in standard R1.

However, taking into account the inclusion of the Mayor's comment in the 1.00pm

bulletin and the fact that the bulletins did not refer to "angry scenes" or the number of

arrests, the Network's Complaints Committee concluded:

The Committee did, however, recall the eye-witness reports separate from the

scheduled news bulletins, in which these matters appeared to have been covered

accurately, and in which Bunting [the announcer] had several times noted to his

listeners that the matter was completely unlike the Springbok Tour, and that

people should stay away and not cause congestion.

Further Correspondence

The PNCC's Manager (Michael Willis), in a letter dated 25 March, sought a copy of a

tape of the programme from 6.00am–6.00pm on 6 January, along with any reports

put before the Complaints Committee.

The Radio Network's response of 3 April included extracts from the Station

Manager's report, and part of the statement from the announcer and programme

director (Mark Bunting). It was pointed out that the Network was not subject to the

Official Information Act. The Network's Complaints Co-ordinator (Richard

Hereford) acknowledged that the material had been edited but explained that the

editing had not distorted the meanings of the documents. Two cassettes were also

sent. The Co-ordinator pointed out that because other commercial stations were

present at the site, it was possible the some of the material raised in the complaint was

in fact broadcast by another station.

In his report to the Network's Complaints Committee, Mark Bunting stated among

other matters:

At no time did I or anyone else broadcasting suggest that people should come

down to the "events"; I do recall reporting, however, that some people had

disappeared, apparently to get their friends. I also said we would be reporting

as long as anything happened. ...

Close to 11.50am, I reported on air that I had just been taken to task by a police

officer for holding a ladder for someone, and that he had warned me that I would

be obstructing him in his duty if I was to do it again. I expressed surprise at the

stern nature of the police warning, but stressed that the police were merely doing

their job.

Mr Bunting acknowledged that a leader of the protesters and the police had used the

station's van's PA system. He also stated:

At no stage did I, or anyone else at the station, issue a "Mayday" call.

However, the next day's "Dominion" reported "Mayday" calls issues by local

stations.

I repeatedly said, "Don't get me wrong; this is NOT a Springbok tour protest

...", and also advised people not to come down and "rubberneck".

The Station Manager's report said he had authorised Mark Bunting to broadcast live

and. when felling operations began in mid-afternoon, the two station journalists were

involved in filing stories to the Wellington news centre.

The Council's Referral to the Broadcasting Standards Authority – 18 April 1997

Dissatisfied with the broadcaster's response, on behalf of the PNCC, City Manager

Michael Willis referred the complaint to the Broadcasting Standards Authority under

s.8(1)(a) of the Broadcasting Act 1989.

The Council stated that it referred the complaint about the live broadcast between

6.00am–6.00pm on Monday 6 January and the complaint about the news bulletin

broadcast at 12 noon on 8 January. It was alleged that these broadcasts breached R9,

R35, R1 and R16 of the Radio Code of Broadcasting Practice.

Dealing first with the R9 aspect of the day-long broadcast, the Council pointed out the

removal of the trees was a controversial matter and thus the broadcaster was required

to show balance and impartiality. However, it continued:

Instead, Classic Hits Palmerston North chose to cover it, not as news, but in an

Outside Broadcast format which treated the matter (in the words of breakfast

announcer/programme director Mark Bunting) as "a nice day for a protest".

The entertainment format, it added, led the station to side with the protesters as was

evident in the comments of co-host Linda Nelson. The Council wrote:

The unbalanced and subjective commentary continued throughout the breakfast

segment.

It provided comments from the transcript to justify its complaint. Further:

It was reported to the City Council that a "Mayday" call was broadcast by the

station later in the day encouraging people to come to Fitzherbert Avenue and

attempt to stop the tree felling. The call was reported in the national press, but

tape evidence is lacking because the station failed to maintain adequate logs.

Referring to standard R35 of the Code, the Council observed:

The Radio Network of New Zealand Limited admit to having failed to record live

news and programme reports from Fitzherbert Avenue for most of the time

specified (approximately 9:30am to 4.00pm), blaming a communication failure

between Classic Hits early and daytime staff.

While acknowledging that the Network had provided statements from two staff at

Classic Hits, the Council pointed out that they were incomplete. The Council

expressed concern that there were contradictions between the statements and the on-

air tapes which were provided. As one example, it recorded:

Suggestions that people come to Fitzherbert Avenue

a) Extract from Station Manager's report: "The allegation that the Station

actively encouraged ... people to demonstrate and protest against the

removal of the trees is without foundation".

b) From written statement from Mark Bunting: "At no time did I or anyone

else broadcasting suggest that people should come down to the events ..."

c) Mr Bunting's on-air comment: "If you'd like to come down and lend your

support ..."

Moving to the alleged breaches of standards R1 and R16 by the news bulletin of 8

January, the Council stated that one inaccuracy was accepted by The Radio Network.

It maintained that the following report from the midday bulletin was also inaccurate.

The same news item contained a further and more serious inaccuracy: "...

around 100 police with long batons and accompanied by police dogs moved to

barricade off the area and remove protesters ..."

This phrase paints a picture of police dogs and baton-wielding police officers

clearing the area of protesters. The police, however, state that batons were worn

but not used, and no dogs were deployed. (Some officers who had answered the

call for volunteers happened to be dog handlers; their dogs remained in the vans

in which they arrived.)

The misleading description came in the course of introducing on-site reporter

Anne-Marie Creswell. She made no attempt to correct the misleading

impression even though the newsreader asked, "And what's been the protesters'

reaction to the police presence?"

In conclusion, the Council said:

A full list of what we perceive to be violations of the Broadcasting Codes for

Radio by Classic Hits in covering the events in Fitzherbert Avenue cannot be

submitted, owing to the station's failure to keep log recordings. However, the

City Council thanks the Authority for considering our complaint about such

violations as we have been able to document.

Further Correspondence

In support of its complaint, the Council (in a letter dated 18 April) sent the Authority

a letter received from the Police Acting District Commander (D L Scott) in which he

made the following comments:

On the day concerned, I did hear "Classic Rock" Radio broadcasting from

Fitzherbert Avenue, speaking to the "tree people" and encouraging people to

support the event. It rapidly turned into a carnival. People arrived to witness

the spectacle, whilst others felt empowered to join in.

Many of the demonstrators were not affiliated with "Save the Avenue Group",

but were there because of media coverage, and some 20 arrests followed

throughout the day.

And:

On 9 January 1997, I had a meeting with Mark Bunting of "Classic Rock", who

was concerned about the Council's reaction to the programme in question, and

wished to know the Police point of view. I advised him I had not heard the

"mayday" call, but was concerned that perhaps there had been an attempt to

make news rather than report it. That any complaint would need to be

supported by tapes of the incident or witnesses. He advised me that there were

no tapes with the "mayday" call as such a broadcast was not made.

In a further letter from the Council (24 April), they corrected some of the references

given to the transcript of the broadcast remarks about which it had complained. It also

sent the Authority copies of the pamphlet "Fitzherbert Avenue: Planning for the Next

Century".

The Radio Network's Response to the Authority – 3 June 1997

The Network advised that it had taken legal advice before responding to the Authority

in view of some of the matters raised.

Dealing first with the letter from the Police, surprise was expressed if the letter had

been obtained specifically to support the Council's referral. The comment about the

role of the mass media in encouraging an increased number of demonstrators, it said,

would be inadmissible in a court. Next, the assertions that Classic Hits encouraged

people "to support the event" were not borne out by the tape recordings. Further, the

comments about civil disobedience were described as astonishing and irresponsible.

Turning to the complaints about the two programmes, the Network said that the

referral raised the following matters:

All complaints now referred to the Authority relate to the actions of protesters

trying to thwart the implementation of a decision by PNCC to remove mature

plane trees flanking Fitzherbert Avenue.

Noting that the Council's decision encountered determined opposition, the Network

reviewed some of the history of that opposition and said it was decided to broadcast

Classic Hits live from Fitzherbert Avenue on 6 January. On 6 January, about 70

protesters were in Fitzherbert Avenue and about 12 climbed the trees. This

information was reported as was the Mayor's statement, and the Council's abandoned

effort to remove the trees.

The Network said that one of its staff who was sent to the site, although not a

protester, joined some of the protesters in a tree to conduct interviews and report on

the experience. As instructed, she descended immediately when the protest action

became serious. The Network argued:

The reports were not inflammatory but in good humour, as is evidenced by both

the tapes and the transcripts. The radio station carried out live broadcasts

periodically throughout the day as events developed.

As for the standard R35 complaint, the Network pointed out that the gap in the

coverage of the programme log recordings was accepted earlier by its Complaints

Committee which had recommended the review of the recording arrangements. It

observed:

The station in question, normally a music station, would not normally warrant a

continuous log recording facility. The gap was caused by a failure to record the

programmes in the first instance, not by a failure to preserve. The reason for the

failure to record is noted in the Complaints Committee's decision, and in the

Station Manager's report.

The Network added that, because of the gap, statements from Station staff had been

obtained. Irrelevant material had been deleted before the statements were sent to the

Council and claims that the unexpurgated versions contained relevant evidence of the

failure to hold recordings was "a direct reflection on the Complaints Co-ordinator"

who had been responsible for the editing. The Network argued:

The reference to the Authority on R35 appears to arise not from dissatisfaction

with a decision by the broadcaster in respect of a complaint regarding an alleged

breach of R35 itself (as the original complaint did not allege any breach of R35),

but rather as an incidental consequence of PNCC's dissatisfaction with the

broadcaster's decision on the actual grounds of the formal complaint.

Turning to the alleged inconsistencies raised by the Council, the Network contended

that there were no inconsistencies. In respect of the example cited above, the Network

recorded:

The written statement by Bunting [the announcer] refers to events between

10am and 4:15pm (for which no log tapes are available). The statement was

obtained only for the express purpose of filling in the gap, not as a report for the

whole of the day. The on-air comment referred to was made at 7:14am, ie not a

time or period to which the written statement is directed. Significantly, the full

passage is not quoted by the PNCC, and in the typed transcript (prepared by

PNCC) the balancing words " ... or voice your opinions ..." are not in bold type,

in contrast to those words which the PNCC perceives as support for its

complaint of lack of balance. A study of the rest of the transcript shows no

subsequent comment by way of encouragement to visit the site.

On the contrary, the reverse is to be found, eg "... to be fair, there is a bigger

crowd here than there was and they could well just be surveilling or surveying

the situation, but just keep your radio well and truly on, take it to work, we will

keep you well and truly posted with what happens here at Classic Hits 97.8 ZA

FM" (transcript, 8.23am) "So I've gotta say though the traffic is behaving itself

very well and if you are coming down to the excitement in Fitzherbert Avenue

please just move right along, just keep going, don't block up the traffic, no

rubber neckers, please, if you don't mind, we'll do that for you, just keep your

radio on, we'll keep you posted, but just be sensible if you're coming down,

thanks very much" (Transcript, 9:25am).

The Network insisted that the other examples did not indicate a lack of balance and, it

maintained, the transcript and the report were not inconsistent.

In response to the alleged contravention of standard R9, the Network stated that

selective quotations had been used out of context. It acknowledged that the focus was

on the protesters but that did not mean that the coverage was partial or unfair. The

Mayor had been interviewed as had Councillor Stewart, and thus a range of significant

views were expressed as required by the standard.

The Network did not accept that Classic Hits had broadcast a "Mayday" call.

The final aspect of the complaint referred to the Authority dealt with the noon

bulletin on 8 January. Repeating the conclusion of its Complaints Committee, the

Network commented:

The action which PNCC sought in its letter of complaint of 14 January was a

retraction and a public apology. In the context of the widespread reporting of

events, PNCC's own public criticisms of the actions of Classic Hits, the

broadcast on the breakfast show of a statement and apology (attached) regarding

6 January and the sole factual inaccuracy (police numbers) in the events of 6

January, the Station did not consider any further broadcast necessary.

Indeed The Radio Network believes it has been unfairly singled out for

unwarranted individual attack. It does not wish in any way that this statement

should be interpreted as a comment on the Council's right to complain formally.

However, it regrets that the Council should have considered it necessary to make

such public and unwarranted attack on Classic Hits 97.8 ZAFM.

In conclusion, the Network commented to the Authority:

The Authority may wish to consider the possibility that much of the complaint

may indicate some loss of a sense of proportion, and a disregard of the right of a

citizen in New Zealand to express his or her opinions freely - and of those

citizens to be informed of what is happening in his or her city.

The Council's Final Comment – 13 June 1997

Expressing disappointment that the Network "defended [the station] at all costs"

despite what was described as strong evidence, the council observed that the

broadcaster's response contained little of consequence. However, some points were

worthy of refutation.

First, it considered that a senior police officer was a better judge of legal issues than

the broadcaster's Complaints Co-ordinator. Secondly, despite the broadcaster's claim

that the co-host who sat in a tree was not part of the protest, the Council pointed to

the announcer's remarks when she was described as a "spoilt tree protester" who was

standing there "to protect the trees". The Council wrote:

In our view Linda Nelson's actions went too far. The impression clearly given

to listeners was she was doing what other protesters were doing, ie occupying

trees. Obviously, the Council could not proceed with the lawful removal of

trees until the trees were no longer occupied. Moreover, it would not be known

to listeners that Linda Nelson was to descend the tree "immediately in the event

of serious protest action".

Turning to the standard R35 aspect of the complaint, the Council commented:

The Council accepts [the Complaints Co-ordinator's] point that Classic Hits

lacks experience in the safeguards necessary to ensure balance and fairness in

live-to-air news reporting. This is why we are disappointed that the Radio

Network declines to accept responsibility for the station's mistake and put in

place measures to prevent similar occurrences in the future.

The Council also asked why had it been necessary to edit the reports received. It also

stated that the non-existence of a complete record frustrated its ability to make a full

complaint.

Referring to the announcer's suggestion that listeners went to Fitzherbert Avenue to

express their opinions, the Council stated:

We consider that the "breakfast outside broadcast" format was totally

inappropriate for such a volatile occasion as the Fitzherbert Tree felling. Such

outside broadcasts, normally covering "in-store" retail trade promotions and

"lark in the park" fun days, are characterised by attempts to arouse interest and

attract people to attend. Mr Bunting was simply doing what comes naturally,

but in the wrong context. The Council urges the Broadcasting Standards

Authority to point out to broadcasters that such formats are inapplicable in

serious and potentially dangerous news situations.

By way of general comment, the Council explained that it had complained about the

coverage of Classic Hits as that was the broadcast which had caused the greatest

concern. In conclusion, it stated:

The Council accepts without reservation the right of New Zealand citizens to

express their views freely. At the same time, nonetheless, there is obligation on

media to report news events fairly and not to act in such a manner as to become

a participant in a protest or facilitate protest activities. We believe that, in this

matter, The Radio Network did not respect this obligation