BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint
National Radio – Nine to Noon – commentary about dispute among board members of NZ Post – accountability of SOEs – lack of balance

Findings
Principle 4 – accountability of SOE boards a controversial issue – authoritative and expert opinion – no uphold

Comment
Opportunity to rebut and question news and current affairs to ensure balance outlined in Guideline 4b applies to talkback – it does not apply to items balanced in themselves or balanced within the current period of interest

This headnote does not form part of the decision.

Summary

The accountability of board members of a State Owned Enterprise was the topic addressed by Sir Geoffrey Palmer in his weekly segment on Nine to Noon. The broadcast complained about was on National Radio on 10 July 2001 at 11.45am.

Simon Boyce complained to Radio New Zealand Ltd, the broadcaster, that Sir Geoffrey’s views omitted to deal with some of what he argued were inadequacies in the accountability process.

In response, RNZ said the issues about the disagreements among board members at NZ Post Ltd, a State Owned Enterprise (SOE) which gave rise to the discussion, had been dealt with fully in news and current affairs programmes. It declined to uphold the complaint.

Dissatisfied with RNZ’s reply, Mr Boyce 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 listened to a tape of the item complained about and have read the correspondence which is listed in the Appendix. The Authority determines the complaint without a formal hearing.

The Programme

Sir Geoffrey Palmer, a constitutional lawyer and former Primer Minister, has a weekly segment on Nine to Noon. This programme is broadcast by Radio New Zealand Ltd from 9.00am - 12 noon each weekday morning.

During the broadcast of Nine to Noon on 10 July 2001, Sir Geoffrey referred to a dispute among the board members of NZ Post Ltd, which had become public, and spoke about the accountability of board members of a State Owned Enterprise (SOE). He disagreed with the host’s comment (Kim Hill) that the SOE model was a "staging post" for privatisation, and argued that the SOE model was concerned with, and remained relevant to, economic efficiency. He drew parallels between SOE-type boards and a commercial entity.

The Complaint

Mr Boyce complained that Sir Geoffrey’s views failed to acknowledge the flaws in the accountability process in the SOE structure, and that Nine to Noon had failed to provide anyone with an opportunity to rebut Sir Geoffrey’s opinion. Mr Boyce noted that his criticism of the SOE model had been confirmed by an officer from the Audit Office.

The Standard

RNZ assessed the complaint under Principle 4 of the Radio Code of Broadcasting Practice which reads:

Principle 4

In programmes and their presentation, broadcasters are required to maintain standards consistent with the principle that when controversial issues of public importance are discussed, reasonable efforts are made, or reasonable opportunities are given, to present significant points of view either in the same programme or in other programmes within the period of current interest.

The Broadcaster’s Response

Questioning first whether the issue involving the board of NZ Post was a "controversial matter of public importance", RNZ pointed out that the programme involved a well-known expert giving some factual background and his opinion on past and current events. RNZ also pointed out that the specific issue involving the disagreement among the board members of NZ Post Ltd had been extensively covered by both the news and current affairs arm of RNZ, and by the other media. That coverage, it added, advanced a range of views on the issue.

RNZ declined to uphold the complaint.

The Referral to the Authority

Dissatisfied with RNZ’s decision, Mr Boyce referred the complaint to the Authority under s8.(1)(a) of the Broadcasting Act 1989.He drew attention to guideline 4b of Principle 4 which provides

4b  Broadcasters may have regard, when ensuring that programmes comply with Principle 4, to the following matters:

i) An appropriate introduction to the programme; and

ii) Any reasonable on-air opportunity for listeners to ask questions or present rebuttal within the period of current interest.
  
Broadcasters may have regard to the views expressed by other broadcasters or in the media which listeners could reasonably be expected to be aware of.

Mr Boyce argued that RNZ did not appear to consider that it was necessary to seek an alternative view. Moreover, Mr Boyce continued, the Controller and the Auditor General had argued in a letter to Sir Geoffrey in 1986, when he (Sir Geoffrey) was Deputy Prime Minister, that the Audit Office should be involved in the accountability structure of SOEs.

On the basis that the Audit Office retained that view, Mr Boyce wrote:

Therefore, my "other significant point of view" is that the objectives of the SOE model, in its legislative form, involved a certain constitutional impropriety. I suggest that Palmer, as a Minister, was either unaware of this fact, or chose to ignore the principle of Parliamentary Control of public finance. RNZ have ensured that this point of view has been excluded.

The Broadcaster’s Response to the Authority

RNZ noted that the referral contained material which was not part of the original complaint, and a reference which it not been able to check. It sought an assurance from the Authority that this material would not be taken into account in its deliberation.

The Complainant’s Final Comment

Mr Boyce did not accept that RNZ had been placed in a difficult position. First, he said, he did not expect the Authority to review the constitutional basis of the SOE model. Second, although he had referred to Audit Office papers in his original complaint, he acknowledged the difficulty he had in proving the source of some of the documents, but maintained that the Audit Office papers advanced the argument that the SOE model was inconsistent with the Public Finance Act 1977. These issues, he added, should be put to Sir Geoffrey, a constitutional expert, when he gave his weekly comment. By not doing so, Mr Boyce suggested:

… that this programme is really about status: ie not what one knows, but who one knows in the media.

The Authority’s Determination

The Authority notes first that the weekly contribution made by Sir Geoffrey Palmer on Nine to Noon is not in the form of an interview. When a person is interviewed, invariably the views advanced are subject to some degree of interrogation and contestability by the presenter. In his weekly slot, Sir Geoffrey expands freely on an issue, drawing on his legal, constitutional and political background, without critical examination of his views by the programme’s host. The contributions from the host appear to be of a "prompting" nature only.

Second, it notes Mr Boyce’s argument that there had been no reasonable opportunity for listeners to present rebuttal to Sir Geoffrey, as required by the Guidelines to Principle 4 of the Radio Code of Broadcasting Practice

The Authority points out that complaints are made because the complainant considers that the a broadcaster has failed to comply with one of the eight Principles contained in the Radio Code. As the Code explains, guidelines are included to assist in the application of the Principles to specific complaints, and are not determinative per se.

It is important to appreciate that not every news item and current affairs programme broadcast on radio requires the broadcaster to provide a reasonable on-air opportunity for listeners to ask questions or present rebuttal.

Guideline 4b states that broadcasters may have regard to such opportunities when responding to a complaint that a broadcast does not comply with the balance requirement in Principle 4. It was included specifically to enable broadcasters of talkback radio to make a submission that an open-line policy was a process whereby balance was achieved.

Accordingly, the Authority records that it does not expect radio broadcasters, whose programmes in themselves comply with Principle 4, to make use of Guideline 4b as part of its response to a complaint that an item is unbalanced.

The Authority now turns to assessing the complaint that Sir Geoffrey’s contribution on 10 July transgressed Principle 4.

The contribution arose from the media coverage of a disagreement concerning board members of NZ Post Ltd - an SOE. The comments did not explore the substance of that dispute which, the Authority accepts, was covered by RNZ in other news and current affairs programmes.

The Authority notes RNZ's argument that SOE accountability is not a controversial issue of public importance and, thus, Principle 4 is inapplicable. It has some sympathy with this view, but notes that the SOE model remains newsworthy periodically. Accordingly, it finds that Principle 4 is applicable.

The comments broadcast on 10 July were authoritative opinions made by an acknowledged expert. As noted above, the structure was not an interview but a commentary. It was one person's opinion on the accountability structure of SOEs. Because of the relative brevity of the piece, it was not a conclusive examination of all aspects of the accountability of board members of an SOE. Nevertheless, as it was clearly a commentary, the Authority accepts that it was an informed contribution but not in breach of Principle 4.

The complainant’s submission included a letter from the Auditor-General, dated 23 May 1986, to Mr Palmer (as he then was) when he was Deputy Prime Minister. The letter expresses concerns about the proposed accountability arrangements for SOEs. The complainant has acknowledged that he does not expect the Authority to conduct a review of the SOE legislative form.

Finally, the Authority notes that to find a breach of Principle 4 would be to interpret the Broadcasting Act 1989 in such a way as to place too great a limit on the broadcaster's statutory freedom of expression in s14 of the NZ Bill of Rights Act 1990, and prefers to adopt an interpretation of the Principle which is consistent with the Bill of Rights.

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

Signed for and on behalf of the Authority

Peter Cartwright
Chair
18 October 2001

Appendix

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

1. Simon Boyce’s Complaint to Radio New Zealand Ltd – 14 July 2001
2. RNZ’s Response to the Formal Complaint – 6 August 2001
3. Mr Boyce’s Referral to the Authority (plus attachments) – 14 August 2001
4. RNZ’s Response to the Authority – 17 August 2001
5. Mr Boyce’s Final Comment – 24 August 2001