BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

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Summary

A Labour Party campaign to show the impact of the reintroduction of market rents for

Housing New Zealand tenants was the subject of an item on One Network News

broadcast on 29 June 1997 between 6.00–7.00pm. Included was an interview with an

elderly couple who expressed concern about the possible implications of the rent

increase on them.

Hon Murray McCully, Minister of Housing, who provided comments during the item,

complained that it did not treat him fairly and was unbalanced because he was not

given the opportunity to comment on the specifics of the case cited.

TVNZ rejected the complaint, pointing out that Mr McCully had declined to

comment on the specific case because of possible privacy implications, and arguing

that he could not later blame the broadcaster for not including balancing comment.

However, it did not consider the item lacked balance. It believed that the Minister's

general responses were sufficient to satisfy the requirement.

Dissatisfied with TVNZ's response, Mr McCully referred his complaint to the

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

For the reasons below, the Authority declines to uphold the complaint.

Decision

The members of the Authority have viewed the item complained about and have read

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

determines the complaint without a formal hearing.

The launch of a Labour Party campaign to highlight the impact of the reintroduction of

market rents by Housing New Zealand was the subject of a news item on One

Network News on 29 June between 6.00–7.00pm. An elderly couple was featured to

illustrate the effects of a rent increase. The husband, who was disabled by a stroke

and unable to speak, tapped out a message on a computer agreeing with his wife when

she expressed their serious concern about being able to cope with a rent increase.

General comment was included from Hon Murray McCully, the Minister of Housing,

and Mark Gosche, the Labour Party spokesperson on housing.

Mr McCully complained to TVNZ that the broadcast did not deal fairly with him,

was unbalanced and failed to present all significant sides of the housing debate. He

contended that when asked to participate he was advised that his contribution would

entail responding to general claims but instead, the item focused on a specific case

study involving the elderly couple. Mr McCully pointed out that the particular case

had not been put to him for comment and that his general comments about the

government's initiatives had been juxtaposed with the specific concerns of the couple,

worried about the impact of the government's policy on them. He emphasised that

his inability to comment on the specific case was heightened because he did not have

the couple's permission to investigate their financial circumstances and determine the

exact amount of allowances to which they were entitled. In his opinion, the report

was manifestly unfair, unbalanced and partial.

TVNZ advised that it investigated the complaint under standards G4, G6 and G20 of

the Television Code of Broadcasting Practice which were nominated by Mr McCully.

The first two standards require broadcasters:

            G4    To deal justly and fairly with any person taking part or referred to in

                     any programme.

            G6    To show balance, impartiality and fairness in dealing with political

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

The other standard reads:
           

            G20      No set formula can be advanced for the allocation of time to interested

                        parties on controversial public issues. Broadcasters should aim to       

                        present all significant sides in as fair a way as possible, and this can

                        only be done by judging each case on its merits.

TVNZ advised that its inquiries indicated that it had been made clear to Mr McCully

(or to his press secretary) that the item would include the case of the elderly couple.

Their plight had been made public at a meeting convened by the Labour Party earlier

that day, and in TVNZ's view, it was natural they should be the example used to

illustrate the impact of the introduction of market rents. Having obtained comment

from Mr Gosche, TVNZ advised that its reporter then sought comment from Mr

McCully. However, by that time the reporter had been advised that Mr McCully

would not comment on the particular case without the couple's permission to

investigate their income support entitlements, and it was therefore decided not to

pursue the matter with Mr McCully further.

TVNZ then questioned whether in fact it was necessary for Mr McCully to obtain a

privacy waiver from the couple. It argued that the couple had consented to the

invasion of their privacy by agreeing to appear before the television cameras, and

suggested that no further waiver was necessary.

Dealing first with the claim that Mr McCully was not treated justly and fairly, TVNZ

recounted the events prior to the broadcast. It advised that it understood it had been

made clear to Mr McCully that the item featured a specific couple. Either Mr

McCully or his Press Secretary had then responded that he was unable to comment on

a particular case, but after being told the nature of the comments by Mr Gosche

(which did not refer to the case) Mr McCully had agreed to respond in general terms

on how the government was allocating money to help those needing a housing

supplement. In TVNZ's view, that demonstrated that he was treated justly and

fairly.

Referring to the complaint that standard G6 was breached, TVNZ responded that it

considered the reporter's statement that the government was boosting the

accommodation supplement by $58 million and Mr McCully's comment that $760

million was being allocated to help those in need in the coming year, sufficed to

provide balance to the rest of the story. It emphasised that it was Mr McCully

himself who claimed he was unable to comment on the specific case and suggested it

was therefore unfair to blame the broadcaster for the absence of information.

With respect to the complaint about a breach of standard G20, TVNZ repeated that

the absence of specific comment on the couple was as a consequence of Mr

McCully's refusal to discuss an individual case and his insistence that he would only

speak in general terms. In TVNZ's view, its reporter was correct in accepting that Mr

McCully did not wish to talk about the specific case and offering him the opportunity

to comment in general terms. It concluded that there was no breach of the standard.

The Authority notes TVNZ's explanation that when dealing with social issues, it

attempts to put a human face to the statistics by providing an example of how

particular individuals are affected by a change in government policy. In the

Authority's experience however, that approach requires some care on the part of the

broadcaster to ensure that all relevant facts about the matter are ascertained. In the

context of the present case it is unclear whether the couple concerned would have been

entitled to some income support adjustment to compensate for the increase. That was

a relevant aspect of the matter. But no inquiry was made and the couple's claim that

they would be worse off was not challenged by the reporter. Nor did Mr McCully

have the opportunity to comment specifically upon that aspect of the case.

Next the Authority turns to TVNZ's argument that the couple, by agreeing to

participate, had therefore waived their right to privacy, and that it was open to Mr

McCully to respond to the specifics of their case. In the Authority's view that puts

the matter too simply. For Mr McCully to respond on the specifics he would have

needed access to the couple's financial information. That had not been volunteered on

the programme nor was there any indication that the couple had agreed to that sort of

private information being discussed in public. In those circumstances, the Authority

accepts that it would have been impossible for Mr McCully to make a detailed public

disclosure of information about the couple's position.

The Authority turns now to an examination of the item. First there was an interview

with the Housing New Zealand tenants, who expressed grave concerns about the

affordability of their home with the rent increase. Then came comment from Mark

Gosche, the Labour Party spokesperson on Housing, who confirmed the tenants' view

that the size of the rental increase would not be offset by the accommodation

supplement. The reporter added that although the couple would receive some

assistance from Income Support, they would still be $29 a week worse off. She noted

that the government said it was allocating $58 million more for the accommodation

supplement. Mr McCully's contribution was that in total, $760 million was going to

be used to help those who needed help with their housing in the year ahead. The item

concluded by returning to the elderly and distraught couple sharing their concerns

about how they would manage. While Mr McCully's comments provided some

balance on the general issues, they did not address the concerns of the particular

couple who were at the centre of the item.

The Authority sees the essence of the complaint as being whether it was fair to Mr

McCully that he was not given an opportunity to confront the personal testimony of

the aggrieved Housing Corporation tenants. It deals first with the complaint that

standard G4, the standard relating to dealing fairly and justly with a person, was

breached. It concludes that notwithstanding his claimed inability to comment

specifically on the couple's situation, he was in a position to make a general statement

clarifying policy as it might impact on people in such a position. He did not do so.

Mr McCully also contends that he was not told the couple would be included in the

item. But even if the situation was as Mr McCully claimed, the Authority would not

be persuaded the standard had been breached.

With respect to the complaints under G6 and G20, the standards relating to balance,

the Authority acknowledges that some effort was made to obtain balancing comments

from the minister, despite an apparent misunderstanding in the information conveyed

to him. It observes also that the general information at the end of the item, relating to

increased funds for helping the needy, and for accommodation supplements, addressed

the need for balance in general terms, albeit less specifically than would have been

desirable. Accordingly it does not uphold those aspects of the complaint.

For the reasons set forth above, the Authority declines to uphold the complaint.

Signed for and on behalf of the Authority

Sam Maling
Chairperson
25 September 1997

Appendix

Hon Murray McCully's Complaint to Television New Zealand Ltd – 3 July 1997

Hon Murray McCully, Minister of Housing, complained to Television New Zealand

Ltd about an item on One Network News broadcast on 29 June 1997 between

6.00–7.00pm.

The item concerned the reintroduction of market rents and was illustrated by referring

to the plight of an elderly couple who claimed they were unable to afford a rent

increase.

Mr McCully complained that the item failed to deal justly and fairly with him, was

unbalanced, and did not present all significant points of view on the issue. He

contended that it should have been explained that the couple featured were eligible for

income support to assist with their outgoings.

Although Mr McCully was interviewed for the programme, he maintained that he was

advised that he would only be responding to general claims, and not a specific claim as

it transpired. He advised that he had pointed out to the reporter prior to the item that

he could not respond to any specific cases without a Privacy Act waiver, and further,

that the details of the specific case had not been put to him and his comments had

been taken out of context. Thus, he concluded, the item had not dealt fairly with him

and was unbalanced.

Mr McCully went on to explain that given the apparent ages of the couple featured, it

was likely that they were tenure-protected and eligible for an allowance which,

depending on the specific circumstances, could be sufficient to cover all of any rent

increase.

Mr McCully accepted that the comments he provided were sufficient to balance the

comments of the Labour Party spokesperson, but were not, in his view, sufficient to

balance the case study.

He believed the breaches could have been avoided had he been given the opportunity

to put some balancing views on the specifics of the case cited, or by being given the

opportunity to respond in a general way to general criticism of the government

housing policy, which he had been assured was the subject of the item.

TVNZ's Response to the Formal Complaint – 22 July 1997

TVNZ considered the complaint under standards G4, G6 and G20 of the Television

Code of Broadcasting Practice which were nominated by Mr McCully.

TVNZ explained that the item concerned a Labour Party campaign, launched that day,

to show that the imminent end to the freeze on rents for Housing Corporation tenants

would make some housing unaffordable. The item featured a couple who claimed they

would not be able to afford a rent increase.

TVNZ advised that it had ascertained that it was made clear to Mr McCully or his

press secretary that the case would feature in the item. It added that it was a routine

matter for news organisations to attempt to put a human face to the statistics by

providing an example of people affected. In this case, the couple's situation had been

revealed at a public meeting (the Labour Party launch).

To Mr McCully's complaint that the specific case had not been put to him, TVNZ

responded that it understood it had been made clear to its reporter that Mr McCully

would not respond to the particular case without a privacy waiver. That being the

case, TVNZ considered there was no point in the reporter pursuing the matter with

him.

TVNZ then questioned whether in fact a privacy waiver was necessary, since the

couple had elected to discuss their circumstances on national television and thus

renounced any claim to privacy over the specific matter of their rent increase. It also

pointed to a document from the Privacy Commissioner which referred to release of

information about individual cases and which provided ministers the ability to discuss

such cases in a way that discloses no more information than in the report, and to cover

other aspects with comments such as "there are some undisclosed facts which give a

different picture".

Turning to the complaint under standard G4, TVNZ repeated that it had been made

clear that the item featured a particular couple and, having been advised by Mr

McCully or his press secretary that he felt unable to respond to a specific case, Mr

McCully was asked to respond in general terms. It added:

The reporter made it clear on air that the government was boosting the

accommodation supplement by $58 million and you were seen stating that " in

total $760 million of taxpayers' money" was being allocated to help those

needing help with housing in "the year ahead".

TVNZ did not consider that the above suggested that Mr McCully was treated

unjustly or unfairly.

With respect to standard G6, TVNZ believed the reporter's comment and Mr

McCully's comment on total spending on accommodation assistance provided balance

to the rest of the story. It continued:

It is our understanding that the decision not to comment on the specific case

was made by you and we submit that is unfair to blame the broadcaster for an

absence of information when you have declined to offer it.

TVNZ considered Mr McCully had provided the government's view.

To the complaint about a breach of standard G20, TVNZ suggested that the reason

there was no explanation about the level of government assistance available to the

couple was because Mr McCully had indicated he was not prepared to discuss an

individual case and would only speak in general terms. It did not believe, in those

circumstances that the item should have been dropped altogether and maintained that

the comment he did provide was sufficient. Overall it concluded that the item was

balanced.

Mr McCully's Referral to the Broadcasting Standards Authority – 24 July 1997

Dissatisfied with TVNZ's response, Mr McCully referred his complaint to the

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

Mr McCully repeated his contention that the item was unbalanced because he was not

offered the opportunity to provide balancing comment on the couple featured. By

showing only one side of the story, he continued, the item was not balanced. He also

contended that it was unfair that he had not been informed that the couple would be

included in the item, and that the item was not impartial because critical comments

from the couple had not been put to him by the reporter.

Mr McCully complained that one significant side of the case was not presented. He

wrote:

The crucial defect in the news item is that the reporter focused on the

affordability claims of the [couple] without then focussing on the income

support which the [couple] were receiving. Since the housing reforms, the

Government's landlord Housing New Zealand has charged market rents. The

instrument by which the Government provides affordability to those in need is

the Accommodation Supplement.

Mr McCully contended that it was impossible to make a balanced reference to

affordability without looking at income entitlement.

Without knowing the specifics of the couple's situation, Mr McCully advised that he

guessed they would not be as badly off as they claimed because they were eligible for

various entitlements. He advised that Housing New Zealand had informed him that it

believed the visual portrayal of the couple's home appeared to be deliberately

misleading, and that the shots gave an unfair impression of the location of the home

and its condition. He noted that Housing New Zealand's concern was such that it had

offered to provide photographic evidence of the property to the Authority if required.

Mr McCully did not agree with TVNZ's contention that a Privacy Act waiver was

not necessary. He pointed out that the information known about the couple was not

gathered or held for the purposes of debating affordability concerns and income

support measures. He indicated that the reporter should have obtained such a waiver

and thus enabled him to comment on the specific case. Without such a waiver, he said,

it was impossible to tell the full story.

Responding to TVNZ's contention that the Authority's privacy principle (vii)

applied – ie that an individual who consented to the invasion of their privacy could not

later succeed in a claim for a breach of privacy, Mr McCully pointed out:

This illustrates a misconception both as to the reason for requiring a Privacy

Act waiver and the relevant law. When I - as Minister of Housing - comment

publicly on a specific case, my actions are subject to scrutiny in terms of the

Privacy Act, not the BSA principles. The BSA only has jurisdiction over

broadcasters who themselves are exempt from the provisions of the Privacy

Act.

Mr McCully contended there were two reasons why as Minister he was entitled to

receive an assurance that the subject of a news story had given a waiver for him to

comment. First, a full response may require him to obtain information from

departments outside his portfolio, and secondly, he contended it was not uncommon

for a person who takes a story to the media to leave out relevant facts.

In Mr McCully's view, the task of journalists was to ensure a story was fair and

balanced, and they should therefore obtain all of the necessary facts. Therefore, he

argued, having a person sign a Privacy Act waiver was not an unreasonable step.

Mr McCully sought an apology from TVNZ, and an acknowledgment that the

reporting was unbalanced and unfair.

TVNZ's Response to the Authority – 31 July 1997

TVNZ repeated that Mr McCully's office was advised that the couple would feature

in the item. It concluded that Mr McCully must have been wrongly advised about the

content of the conversations between TVNZ's reporter and his staff.

To Mr McCully's claim that the item should have referred to income support and not

affordability, TVNZ pointed out that the report referred to the Accommodation

Supplement, and noted that in the couple's case, they would be $29 a week worse off.

It emphatically denied that the visual portrayal of the couple's home was deliberately

misleading. Further, because this point was not made in Mr McCully's original letter

of complaint, it considered it should therefore be disregarded by the Authority.

With respect to the Privacy Act waiver, TVNZ believed that because the couple had

agreed to discuss their financial situation openly, they had forfeited their right to

privacy in this specific area. It asked whether the Minister was seriously suggesting

that the story should be forfeited because he had not seen a Privacy Act waiver.

TVNZ advised the Authority that this was the first occasion to its knowledge on

which the question of a Privacy Act waiver had been raised. It believed it raised

important questions which required resolution. As an example, it asked, what would

happen if, at a fatal house fire, the family blamed Housing New Zealand neglect for the

blaze. Would the absence of a Privacy Act waiver prevent the Minister from

commenting and thus mean the story should be suppressed or abandoned? TVNZ

considered such a result would make a travesty of the media's role in society, and

would contravene both the freedom of information provisions in the Bill of Rights Act

and the spirit of the Privacy Act, which specifically excludes the news media from its

provisions.

TVNZ observed that the Minister knew perfectly well that the obtaining of a Privacy

Act waiver by a reporter would often be impracticable. It believed the Minister

himself should have obtained such a waiver, knowing that the couple was to appear on

the programme.

TVNZ repeated that it believed the item was fully balanced and that Mr McCully was

able to respond in general terms to the general comments of his political opponent.

Regarding the disclosure of information about the couple, TVNZ repeated that there

were ways the Minister could have responded without getting a Privacy Act waiver.

To Mr McCully's argument that it was not uncommon for people who take stories to

the media to leave out relevant facts, TVNZ responded that it was also not uncommon

for official sources to leave out relevant facts. It was the newsgatherer's task to sort

through such information.

TVNZ concluded:

The news media is free to investigate and publish matters of public interest. If

the Minister wishes to decline an offer to comment we recognise and respect

that as his prerogative. That decision to decline should not prevent the

publication of facts which a professional journalist has carefully checked and

found to be accurate.

Mr McCully's Final Comment – 13 August 1997

When asked to make a brief final comment, Mr McCully made the following points:

1.  He accepted that there was a conflict as to whether the case had been put to

him before the interview. However, he contended, the point was that by deciding to

include the couple in its programme, TVNZ immediately incurred an obligation to

balance their concerns with what assistance was available to them. Failure to do so

was a breach of standard G4, G6 and G20.

2.  Mr McCully repeated that it was the journalist's job to ensure that the story

was fair and balanced, and she should have been prepared to do what was necessary to

obtain the required facts to meet those standards. He did not consider it was an

unreasonable step for her to obtain a Privacy Act waiver so that he could provide

balancing comment.

3.  As a result of TVNZ's refusal to provide an opportunity for a detailed

analysis of the couple's circumstances, Mr McCully contended it ran a risk of

portraying them incorrectly, and in the event, it did. According to his model, TVNZ's

assessments based on the couple's statements were wrong. He was sure that if a

waiver was secured, it would show that TVNZ was inaccurate.

4.  Mr McCully wrote:

TVNZ deliberately chose to make detailed assertions which given the nature of

the Sutherlands' Income Support entitlements required a balancing statement in

response. They denied me the opportunity to make such a statement.