BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

---

An appeal against this decision was dismissed in the High Court: AP 268/96  PDF299.14 KB

---

Summary

The current state housing rental policies and the possible introduction of a private member's bill by the Opposition spokesperson on housing was the subject of an item on Morning Report broadcast by New Zealand Public Radio Ltd on 26 February 1996. The Minister of Housing, Hon Murray McCully, complained to NZPR that he was treated unfairly because he was given insufficient time to prepare for an on-air debate about the matter, and his request for a separate interview following the interview with the Opposition spokesperson was rejected. When NZPR failed to respond to the complaint within 60 working days, the Minister referred it to the Broadcasting Standards Authority under s.8(1)(b) of the Broadcasting Act 1989.

For the reasons given below, the Authority upholds the complaint that the item breached standard R9 of the Radio Code of Broadcasting Practice. Further, New Zealand Public Radio Ltd's failure to respond to the complaint within 60 working days breached s.8(1)(b) of the Broadcasting Act 1989.

Decision

The members of the Authority have listened to a tape of the item complained about and have read the correspondence (summarised in the Appendix). As is its practice, the Authority determines the complaint without a formal hearing.

State housing rental policies and the possible introduction of a private member's bill to abolish market rents were the subject of an item on Morning Report broadcast by New Zealand Public Radio Ltd on 26 February 1996. Paul Swain MP, an opposition spokesperson on housing who was responsible for the private member's bill, was asked about the likelihood of the bill being put before a select committee and was also given an opportunity to comment on current state housing rental policies and to explain the Labour Party?s proposals for the future.

The Complaint

Hon Murray McCully, Minister of Housing, complained to NZPR that, although he was invited to comment, he had been given insufficient time prior to the broadcast to be briefed properly, and that NZPR?s rejection of his proposal that he be interviewed immediately after Mr Swain was unfair. He also regarded NZPR's insistence on a live debate between Mr Swain and himself as unfair as he had no notice, no information about Mr Swain's press release, and no opportunity to be briefed on the matter. To NZPR's offer of an interview which would be broadcast later in the day on Midday Report, Mr McCully responded that that was not a fair option as it would merely perpetuate the issue and thus compound the breach. He noted in passing that Mr Swain's press release received no coverage in the major newspapers during that day, and was not carried by IRN or either of the television channels that evening.

As NZPR did not respond to the complaint within the statutory time period of 60 working days, Mr McCully referred it to the Authority under s.8(1)(b) of the Broadcasting Act 1989. In his letter of referral, the Minister expressed concern that this was the second occasion in 1996 on which NZPR had failed to respond to his formal complaint within the statutory time period. He sought a ruling from the Authority that NZPR's tardiness was unacceptable, and suggested it was fair to conclude that the lack of timeliness was indicative of the company's general attitude.

NZPR's Response

In its response to the Authority, NZPR enclosed a copy of its formal decision on the complaint, completed within the statutory time period, but for some inexplicable reason, not mailed to the complainant. NZPR reassured the Authority that its procedures for despatching decisions would be reviewed to ensure that the lapse would not be repeated.

NZPR considered that the complaint arose not from a failure to achieve balance, but from an editorial decision as to the format of the item. It noted that the Minister was invited to take part in the item in order to respond to points made by an opposition Housing spokesperson, but declined the invitation on the grounds that he had insufficient time to be briefed on the subject.

NZPR assessed the complaint under standards R5 and R9 of the Radio Code of Broadcasting Practice, which were nominated by the Minister. Those standards require broadcasters:

R5 To deal justly and fairly with any person taking part or referred to in any programme.

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.

Turning first to the standard R5 aspect of the complaint, NZPR argued that because the Minister neither participated in the item, nor was he referred to, the standard did not apply. It therefore declined to accept the complaint that standard R5 was breached. It added that it considered the matters raised under standard R5 were more properly assessed within the areas covered by standard R9 which requires an opportunity be given to broadcast significant balancing opinions.

NZPR then turned to the complaint that standard R9 was breached. First, it explained the editorial process involved in developing an item for Morning Report, and outlined the events leading up to the broadcast of the item on 26 February. The item, it reported, arose out of a fax received from Mr Swain the previous day which summarised his proposed private member's bill regarding state house rental policies.

When contacted, Mr Swain indicated that he had support among the opposition parties to introduce the legislation. NZPR advised that it then attempted to contact the Minister through his Press Secretary. When that proved unsuccessful, a call was made to the Minister's home where it was discovered that the line was switched to a fax machine. The producer then sent a fax to that number explaining the topic for the following morning. No response was received. On the morning of 26 February, the Minister?s Press Secretary was contacted and accepted, on behalf of the Minister, an invitation to speak provided that he do so after Mr Swain. That proposal, NZPR advised, was not regarded as acceptable by the producer, who did not wish to give the Minister the opportunity to have the final word in a story which was essentially about legislation being introduced, and not an attack on the government. Further, the producer believed that comments by an opposition spokesperson should be balanced by government comment at the same time.

When the proposal to engage in an on-air debate was rejected on the Minister?s behalf by his Press Secretary, it was suggested that the Minister be interviewed for an item on Midday Report later that morning. That proposal was also rejected as unacceptable. The assistant editor of Morning Report sought from the Minister's Press Secretary confirmation that the Minister's unwillingness to appear amounted to a refusal to debate the matters. NZPR denied that the request was out of order and that it was a threat, and noted that no mention was made in the broadcast that the Minister had refused to participate.

In NZPR's view, s.4(1)(d) of the Broadcasting Act 1989 took precedence over standard R9 of the Radio Code of Broadcasting Practice and, because reasonable opportunity was given to the Minister to speak and reasonable efforts were made to contact him, it was complied with. It upheld its right to make an editorial judgment about the format of the programme, and rejected the notion that it should abide by the newsmaker?s preference when planning items for broadcast.

NZPR concluded that every effort was made to ensure that a balancing view was broadcast in conjunction with the interview with the opposition spokesperson and declined to uphold the complaint.

The Authority's Findings

The Authority first examines NZPR's failure to comply with the 60 working day statutory time limit when responding to the complaint. It regards the lack of response as serious and, although it was advised the problem occurred because of difficulties with NZPR's office systems, the Authority notes with deep concern that it is not the first time that NZPR has failed to comply with its statutory obligation in this regard.

The Authority accepts NZPR's assurances that its systems have been improved. On the basis of this advice, it would not expect to be obliged to deal with breaches of s.8(1)(b) of the Broadcasting Act 1989 by NZPR in the future.

The Authority next turns to the events leading up to the broadcast of the item which form the background to the complaint. The Minister claimed he was treated unfairly because the approach to him was made with insufficient time for him to be briefed properly on the subject. He also alleged, on the basis that he was refused the right to respond to the issues raised after Mr Swain had had his say, that the item lacked balance and impartiality.

The item arose out of a press release issued by Mr Swain concerning a private member?s bill aimed at overturning current state house rental policies. According to NZPR, on the evening before the broadcast it attempted to contact the Minister through his Press Secretary. When that was unsuccessful, an attempt was made to contact the Minister at his home number but that was switched over to a fax machine.

NZPR's staff then sent a fax to that number but there was no response. The next morning, about 6.50am, the Minister's Press Secretary was contacted and accepted, on the Minister?s behalf, the invitation to speak with the proviso that he be permitted to speak after Mr Swain. That proposal was not acceptable to NZPR's editor and the Minister declined to be interviewed. A subsequent invitation to the Minister to be interviewed for Midday Report was also refused.

With respect to the complaint that standard R5 was breached, the Authority does not agree with NZPR that the standard was inapplicable. It considers that the Minister, as the government's spokesperson on housing policy, was the appropriate person to respond to the proposals to change state house rental policy, and to deal with the criticisms of the government's current policy. Furthermore, as Minister of Housing, the Authority believes he was impliedly the subject of the criticism of the current regime. Nevertheless, the Authority decides to subsume the complaint that standard R5 was breached under standard R9 which, it considers, encapsulates the essence of the Minister's complaint that the item lacked balance, impartiality and fairness.

Standard R9 requires the observance of balance, impartiality and fairness and the making of reasonable efforts to present significant points of view either in the same programme or in other programmes within the period of current interest. The Authority notes that the standard repeats and expands on the requirement in s.4(1)(d) to which NZPR referred. While the section in the Act accepts that giving reasonable opportunities may be sufficient to comply with an alleged breach of s.4(1)(d), standard R9 adopts and gives more substance to the phrase "reasonable efforts" which is also used in the Act. Standard R9, in the Authority's opinion, is not subsumed by s.4(1)(d) of the Broadcasting Act 1989.

With respect to this complaint, the Authority notes first that NZPR made efforts to obtain balancing comment from the Minister. It interprets that as an acknowledgment by NZPR that balancing comment was required. Had the Minister or his Press Secretary been available on the day prior to the broadcast, there could well have been adequate opportunity for briefing the Minister and the item would have proceeded as a live debate, the format intended by the editor. However, neither the Minister nor his Press Secretary was able to be contacted.

The Authority accepts NZPR's insistence that it had the right to make the editorial decisions as to how the item was to be structured and understands why it did not wish to permit the Minister to have the final word on the subject. Nevertheless, it believes that when it became apparent that the Minister was unable or unwilling to appear, the onus to achieve balance in the item shifted back to the editor and the interviewer to ensure that all sides of the debate were addressed. The Authority agrees with the Minister that the offer of time on Midday Report did not suffice to provide the necessary balance.

The Authority does not consider unreasonable the Minister's insistence on being briefed prior to appearing on the programme, and similarly that it was not unreasonable for NZPR to dictate the format of its items. However, it believes the onus falls squarely on the broadcaster, when direct comment from the proponents is unavailable, to provide its own balance, by challenging questions from the interviewer.

In the Authority's view, the item concerned a controversial subject and was thus required to be balanced. As the item was broadcast, the Authority considers that it failed to satisfy that requirement because the item investigated the subject of state house rental policies from only one perspective and the interviewer did not challenge the views advanced. While it accepts that the Minister?s refusal to appear made it more difficult to achieve balance, there nevertheless remained an obligation on the broadcaster to present another view. Because it failed to do so, the broadcast contravened standard R9.

For the reasons set forth above, the Authority upholds the complaint that an item on Morning Report broadcast by New Zealand Public Radio Ltd on 26 February 1996 breaches standard R9 of the Radio Code of Broadcasting Practice. Further, New Zealand Public Radio Ltd?s failure to respond to the complaint within 60 working days breaches s.8(1)(b) of the Broadcasting Act 1989.

The Authority declines to uphold any other aspect of the complaint.

Having upheld a complaint, the Authority may make an order under s.13(1) of the Broadcasting Act 1989. It does not intend to do so on this occasion because it is apparent that efforts were made to introduce balance. With respect to the failure to respond within the statutory time period, the Authority accepts the assurance that NZPR?s systems have been improved to ensure compliance with the Act.

Signed for and on behalf of the Authority

Judith Potter
Chairperson
15 August 1996

Appendix

Minister of Housing's Formal Complaint to New Zealand Public Radio Ltd – 5 March 1996

Hon Murray McCully, the Minister of Housing, made a formal complaint to New Zealand Public Radio Ltd about an item on broadcast on Morning Report between 6.00 - 9.00am on 26 February 1996.

He noted that he was asked to appear live on-air during the programme to respond to comments and claims by Paul Swain MP, Labour's housing spokesperson. However, because he was travelling and had to be briefed by phone by his Press Secretary, Mr McCully had requested that he be interviewed after Mr Swain and respond to his comments then. He reported that the Executive Editor of the programme declined that suggestion and threatened to broadcast that he had refused to appear on-air. He was later asked to respond for a broadcast later in the day.

Mr McCully alleged that NZPR breached standards R5 and R9 of the Radio Code of Broadcasting Practice. He claimed that he was not dealt with fairly because Mr Swain's press release, on which the item was based, had been distributed the previous day, yet he was not approached until 6.50am the day of the broadcast. Further, Mr McCully contended that by insisting upon a live debate and not permitting an interview of Mr Swain, followed by comments from him, NZPR had failed to meet the requirement for balance, impartiality and fairness.

The Minister insisted that had he accepted the invitation to debate with Mr Swain, it would have been a "set-up" because he had no notice, no copy of Mr Swain's press release and no opportunity to be briefed. He added:

By offering Mr Swain a five minute interview, but refusing me identical treatment, in the circumstances Radio New Zealand failed to meet its obligation for fairness, impartiality and balance.

With respect to NZPR's offer to interview him for Midday Report, Mr McCully responded that the offer perpetuated the issue and thus compounded the offence. He also noted that Mr Swain's press release received no coverage in the major morning newspapers that day, was not covered by IRN or either television channel. While he accepted that NZPR was entitled to a different editorial line, Mr McCully suggested that it could not pretend it was offering him the opportunity for balance.

Minister of Housing's Referral to the Authority – 4 June 1996

Mr McCully referred his complaint to the Authority under s.8(1)(b) of the Broadcasting Act 1989 because NZPR had not responded within the 60 working day time period set out in the Act.

Mr McCully also expressed his concern about NZPR's dealing with this and other complaints, noting that this was his second complaint which had not been responded to recently within the statutory time period.

He sought from the Authority a ruling that NZPR?s attitude was unacceptable.

NZPR's Reply to the Authority in Response to the Referral – 6 June 1996

Explaining that it had reached a decision on the complaint but that for some inexplicable reason it had not been sent to Mr McCully, NZPR sent a copy to the Authority, marked Draft, of its response to the Minister dated 23 May 1996.

As a preliminary matter, NZPR argued that the complaint arose not from a failure to achieve balance or to make available an opportunity to express balancing views, but because of an editorial decision by the Executive Editor to present the segment of the programme in a particular way.

NZPR noted that in the item which went to air, not only did the Minister not participate, but he was not mentioned by either Mr Swain or the presenter. It maintained that standard R5 only requires dealing fairly with persons taking part in or referred to in a programme. It therefore declined to accept the complaint with respect to standard R5.

It then turned to an assessment of the complaint under standard R9. By way of background NZPR explained the process generally involved in setting up items for Morning Report and the process it had undertaken specifically to ascertain who was involved in the decision to run the item as it stood. It rejected any innuendo of incompetence.

Next, it listed the matters taken into account by the Executive Editor in making his decision to have an on-air debate. First, Mr Swain had said he had the numbers to pass his bill, despite government opposition. Secondly, as it was likely to attack the government's policy, it was decided that government comment should be made in the same item. Thirdly, it was considered that having the Minister in a separate piece at the end of the item would in effect give him the last word. It was felt fairer to have the presenter mediating the discussion. Finally, NZPR advised, its Executive Editor had made the decision on sound professional grounds and was unwilling to run two consecutive items which were similar.

NZPR then outlined its attempts to contact the Minister the previous day, noting that his Press Secretary was not available on the cell phone number given and that the Minister's private phone was switched to fax mode and, although its staff sent a fax to that number, no response was received.

It outlined the negotiations with the Minister's Press Secretary on the morning of the broadcast, noting that the Minister's position was that he would not enter a live debate. Although the Minister was offered an interview to be broadcast on Midday Report, NZPR noted that he had declined the offer and, when asked for clarification of his response to the offer, agreed that it was a refusal.

NZPR concluded:

The Complaints Committee believes that the essential points of the Minister's complaint can be dealt with under the Code of Practice R9, but considers that the specific provision of the Broadcasting Act, s4(1)(d), takes precedence over the Code of Practice, the essential difference being the Act's acceptance of the giving of reasonable opportunity as satisfying the section's obligation, as well as the making of reasonable efforts, to obtain and broadcast balancing views.

NZPR believed that every reasonable effort had been made to see that a balancing view was broadcast. It did not consider it should be subservient to the newsmaker's preference.

It declined to uphold any aspect of the complaint.

Minister of Housing's Final Comment – 14 June 1996

Noting first that NZPR's response was a draft one only, the Minister rejected NZPR's conclusion that standard R5 was inapplicable. He pointed out that not only was he the Minister of Housing but also the Minister responsible for Housing New Zealand. Therefore he was responsible for responding at a political level on matters to do with Housing New Zealand.

Further, he noted that Mr Swain attacked the government and, in Mr McCully's view, that was an attack to which he would respond to as Minister. Otherwise, he wrote:

... the requirement "to deal justly and fairly" could easily be evaded in contravention of the spirit of the legislation and programme standard guidelines.

Next, he responded to the Morning Report editorial team's intention to seek an interview with him for Midday Report and wrote:

I cannot reconcile being regarded by Radio New Zealand on one hand as not "either taking part or referred to" in the Morning Report item, for the purposes of just and fair dealing under programme standard R5, while at the same time being regarded as the appropriate person to approach to comment for a later programme, on Mr Swain's claims.

The Minister also did not accept that reasonable efforts were made by NZPR to contact him. First, he noted that his Press Secretary was able to be contacted at home the evening prior to the broadcast. Secondly, his Press Secretary reported that the tone and demeanour of NZPR's approach were "increasingly threatening".