BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

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Summary

Claims that a high proportion of used cars imported from Japan had their odometers

wound back prior to sale in New Zealand, were the subject of an item on 60 Minutes

broadcast on TV One at 7.30pm on 25 May 1997. A follow-up to that item was

broadcast on 60 Minutes on 1 June 1997. Part of the second item included comments

made by two motor vehicle industry leaders on the lack of action by the previous

Minister of Customs, Hon Murray McCully, in solving the imported car problem.

Hon Mr McCully, presently Minister of Housing, complained to Television New

Zealand Limited that by not offering him a chance to appear on the second item, it had

dealt unjustly and unfairly with him, and accordingly the item lacked balance, and

failed to present all significant sides fairly.

TVNZ in response considered that the item was one of many in a running story, and

that balance and fairness were met by offering the Minister a chance to comment on

the issues in subsequent items. The present Minister of Customs, it noted, was

included on the item to defend departmental action.

When referring the matter to the Broadcasting Standards Authority under section

8(1)(a) of the Broadcasting Act 1989, Mr McCully advised that he was concerned

about the need to provide balance to the comments made about him personally.

For the reasons below, the Authority upholds the aspect of the complaint which alleged

a breach of standard G4 of the Television Code of Broadcasting Practice. It declines

to uphold any other aspect of the complaint.

Decision

The members of the Authority have viewed the programme complained about and

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

Authority determines the complaint without a formal hearing.

In a follow-up to an earlier item dealing with the situation of cars being imported into

New Zealand with wound back odometers, TV One broadcast an item on 60 Minutes

on 1 June 1997 which included comments from two motor vehicle industry leaders

who were critical of actions taken by Hon Murray McCully when he was Minister of

Customs. The then Minister of Customs, Hon Neil Kirton, responded to criticisms of

Customs Department action at that time, but no response was made on behalf of Mr

McCully.

Mr McCully complained to the broadcaster Television New Zealand Ltd that he was

not given an opportunity on the programme to respond to the allegations made by the

two industry leaders. By not giving him this opportunity, he complained that the

programme breached standards G4, G6 and G20 of the Television Code of

Broadcasting Practice. 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 one 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 be

done only by judging every case on its merits.

TVNZ advised that it considered the complaint under the standards nominated by Mr

McCully. Because it considered that the item complained about was, and remained,

part of a running story its view was that section 4(1)(d) of the Broadcasting Act was

relevant. This provides:

4(1) Every broadcaster is responsible for maintaining in its programmes and

their presentation, standards which are consistent with -

(d) 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.

It considered that the words "within the period of current interest" took on special

importance when the story was, as in this case, ongoing. It suggested that it was

neither possible nor desirable to cover every angle each time the subject was raised.

TVNZ pointed out that Mr McCully was approached by TVNZ's political editor on

both 2 and 3 June and offered chances to comment on the debate. The offers were

declined.

TVNZ gave two reasons why it considered an immediate response to the comments

complained about was not needed. First, to have done so, it said would have diverted

attention form the main issue being explained, and second, the programme contained a

response to any suggestion of past departmental negligence from the then Minister of

Customs, Hon Neil Kirton. It was TVNZ's view that it was not appropriate that

both Mr McCully and Mr Kirton should be seen commenting on an area which was

by then Mr Kirton's responsibility.

TVNZ noted that on 3 June a fax from Mr McCully's department was summarised on

the Holmes programme which succinctly outlined Mr McCully's point of view of the

action taken on Japanese imports while he was Minister of Customs.

TVNZ declined to uphold the complaint under any of the nominated standards.

In complaining to the Broadcasting Standards Authority under section 8(1)(a) of the

Broadcasting Act Mr McCully summarised his complaint with the following points:

* 60 Minutes was able to find the time to edit and broadcast disparaging personal

criticism of him by two separate motor vehicle industry leaders, but chose not to

approach him during the week or more in which the item was compiled, to obtain

balancing comment.

* The failure to provide balance on the particular programme was not nullified by

subsequent attempts to gain comment.

* The "period of current interest" for the Minister on the issue was the point at

which the adverse comments were made.

* In response to TVNZ's comment that it was not possible to provide every angle

each time the subject was raised, the Minister commented that he was not asking

for an opportunity to provide another angle, but to offer balancing comment on one

angle.

* Mr McCully sought an apology from TVNZ and an acknowledgment on a future

60 Minutes programme that the reporting of comments about him was unfair.

TVNZ in subsequent correspondence reiterated its comments, stressing the ongoing

nature of the debate and the fact that Mr Kirton as Customs Minister had commented

on the programme, and that Mr McCully had refused to provide comment on either of

the two days following the broadcast.

Mr McCully reiterated the earlier comments he had made stressing that the adverse

statements on the programme were of a personal nature, and needed specific balance in

the programme at issue.

The Authority's view is that Mr McCully was not dealt with justly or fairly by the

programme. Mr McCully was named personally in the programme by Mr Kerr and

Mr Hart, both motor vehicle industry leaders. Moreover, specific damaging

allegations were made about him which, in the Authority's view, required, out of

fairness to Mr McCully, an opportunity for him to comment. It is clear that there

was plenty of time while the programme was being compiled for Mr McCully to have

been asked for a response. The Authority rejects TVNZ's argument that the

comments were a "sidebar" to the discussion in the programme. While it agrees with

TVNZ that it is absurd for a broadcaster to be required to show balance in each case

where a critical comment is made about a person, in this case the nature of the

comments made, the relevance of them to the debate, and the ability of the broadcaster

to obtain balancing comments meant that it was reasonable to seek a response.

The Authority is of the view that TVNZ did comply with the balance standard (G6),

given the ongoing nature of the debate. It also notes Mr Kirton on the programme

addressed general criticisms of the Department's efforts. This added balance to the

programme.

For the reasons set forth above, the Authority upholds the complaint about the

broadcast by Television New Zealand Ltd of an item on 60 Minutes on 1 June

1997 as a breach of standard G4 of the Television Code of Broadcasting

Practice.

It 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. The Authority does not intend to in this case given that

TVNZ did offer Mr McCully an opportunity to comment, albeit late, on two

occassions subsequent to the broadcast.

Signed for and on behalf of the Authority

Sam Maling
Chairperson
25 September 1997

Appendix

Minister of Housing's Complaint to Television New Zealand Ltd – 3 June 1997

Hon Murray McCully, presently Minister of Housing and formerly Minister of

Customs, complained to Television New Zealand Ltd about an item on 60 Minutes

broadcast on TV One on 1 June 1997, which concerned action taken by the Customs

Department on the importation of cars with incorrect odometer readings. Mr

McCully believed that TVNZ had breached standards G4, G6 and G20 of the Television Code

of Broadcasting Practice.

The Minister enclosed an extract of an exchange on the programme between the

presenter, the Managing Director of Daihatsu New Zealand, Murray Hart, and the

Chief Executive of the Motor Industry Association, Perry Kerr. The exchange

commented adversely on actions taken by Mr McCully when he was Minister of

Customs.

Mr McCully specifically complained that he was not given an opportunity on the

programme to respond to the criticisms of him. By not giving him this opportunity,

he said, the programme failed to deal justly and fairly with him, failed to show balance

or impartiality, and omitted his significant side in the debate.

Mr McCully advised that 60 Minutes had failed to approach him or his staff for

comment before the programme went to air, and had failed to broadcast previously

released media statements to refute the comments made. He did not consider that an

opportunity to comment after the programme had been broadcast, would have

prevented his complaint.

Mr McCully sought an apology from TVNZ, and an acknowledgment on a future 60

Minutes programme, that the reporting of the comments about him was unbalanced

and unfair.

TVNZ's Response to the Formal Complaint – 18 June 1997

Considering the complaint under the nominated standards, TVNZ explained that the

item broadcast on 1 June was, and remained part of a running story. Thus, it

considered that section 4(1)(d) of the Broadcasting Act and its reference to the period

of current interest was relevant. It noted that since the story became active towards

the end of May, there had been 12 items on One Network News, and six in its current

affairs slots (60 Minutes and Holmes). It considered it neither possible nor desirable

to cover every angle on every broadcast.

TVNZ reminded the Minister that its political editor had, on both 2 and 3 June,

offered him the chance of contributing to the debate on the issues but that these had

been rejected as the Minister apparently believed that his appearance would be used

to "smooth over" the formal complaint. TVNZ expressed disappointment that the

Minister felt that it was trying to avoid its responsibilities and it wished to remove

that suspicion.

There had been two principal reasons, TVNZ reported, why it had not been

considered necessary or desirable to seek the Minister's comments immediately.

First, it said, to have done so would have been to divert attention away from the issue

being examined. Secondly, the programme contained a response to any suggestion of

past departmental negligence from the current Minister, Neil Kirton. TVNZ

considered that it was appropriate that the present minister should answer for the

department's performance, even when it referred to a time before he took office.

TVNZ also advised that, on 3 June 1997, Holmes summarised a fax from the

Minister's department. The broadcast summary said:

A former Minister of Customs, Murray McCully, declined to appear on

Holmes tonight.

Today he dealt with the matter by way of a two page fax accompanied by a

press release he issued in 1992.

He flatly rejected criticism of his handling of the issues of Japanese imports.

He said the 1992 policy was one of seizure and confiscation where it could be

proven that an odometer had been wound back.

He also acknowledged in 1992 the enormous expense of checking all the

speedos on second hand cars, so he believed the deterrent would have to be the

severity of the penalty for importers caught cheating.

Mr McCully did not explain how Customs would catch cheaters if they didn't

check the speedos.

Arguing that the statement, "he flatly rejected criticism of his handling of the issues of

Japanese imports" was, in the context of a running story, a proper and fair rebuttal of

the comments made by Mr Hart and Mr Kerr, TVNZ noted that the comments made

were the genuinely held opinion of the two men. They were not, it added, seen as the

opinion of TVNZ or its reporter.

TVNZ rejected the contention that it had breached standards G4, G6 and G20. It

advised in respect of standard G4:

Your specific rejection of the criticism was carried by TVNZ within the

context of a running story and you had the opportunity had you wished to

appear in person to reinforce that. The programme itself would have been

diverted from its purpose had it become an investigation into your former

department's handling of this issue, and allegations of department negligence

were properly rejected by the present Minister of Customs.

TVNZ also applied these comments to standard G6, adding:

... we aver that in a running story of this nature ... it is appropriate, as the

Broadcasting Act recognises, to achieve balance over the period of current

interest.

In relation to standard G20, it contended, looking at the coverage overall, that all

significant issues had been heard. TVNZ declined to uphold the complaint.

The Minister's Referral to the Broadcasting Standards Authority – 14 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 reiterated the substance of his complaint to TVNZ. He summarised it as

follows:

... the weekly TVNZ 60 Minutes programme was able to find time to film, edit

and broadcast disparaging personal criticism of me by two separate motor

vehicle industry leaders, but chose not to make any approach to me or my

staff during the period of a week or more in which the item was compiled, to

obtain balancing comment. Consequently there was no balancing comment in

the programme on this matter from me or from anyone else on my behalf.

In response to TVNZ's arguments, he wrote:

A broadcaster who has failed to "show balance, impartiality and fairness in

dealing with political matters", cannot argue that by intending to broadcast

balancing comment on that issue during the same or during another programme

at a later date that that initial failure is nullified. Once a breach of the Code of

Broadcasting Practice has occurred it is irrelevant what any follow-on

broadcasts contain.

...

The "period of current interest" for me on this issue was the point at which 60

Minutes allowed Mr Hart and Mr Kerr to pass comment on my actions, as the

then Minister of Customs, without offering me an opportunity to provide

balancing comment.

TVNZ's Response to the Authority – 30 July 1997

TVNZ restated its contentions in light of what it considered to be an adjustment by

the Minister to the focus of his complaint.

TVNZ advised that it was right, proper and usual to seek comment on criticism of a

department from the current Minister, even though the comments may relate to a time

prior to his taking office. It also considered it perfectly in order for the news media to

publish historical criticism of Ministers or their departments where those criticisms

were seen to be the genuinely held views of the speaker, without in every case seeking

balancing comment from the Minister or department concerned. It also stressed that

in the context of the item, the comments were a "sidebar", and that the issues

focussing on allegations of odometer tampering and those allegedly dealing in it, were,

and remained, a running story. Mr McCully, TVNZ said, was invited to take part in

discussion on the 2 and 3 of June, times which were within the "period of current

interest" as referred to in section 4 (1)(d) of the Broadcasting Act 1989.

The Minister's Final Comment – 13 August 1997

The Minister made four specific comments.

First, he stated that the references to him in the item were distinctive and evoked

questions to his office as soon as the programme ended. As neither he nor his staff

had seen the programme, comment was declined. As the following day was a

statutory holiday, 36 hours elapsed before he was able to respond. During that time,

however, the comments had damaged his reputation.

Secondly, as the criticisms from the motor industry leaders were directed at him by

name, comment from the then Minister was insufficient as he spoke for the

Department.

Thirdly, with reference to the period of current interest argument advanced by TVNZ,

the Minister maintained that TVNZ was obliged to include his comment on the item in

question as it had gathered the material before its broadcast.

Finally, as TVNZ had chosen to include in the programme the comments from the

industry leaders, it was obliged under standards G4, G6, and G20 to include his

response.

TVNZ's Final Comment – 18 August 1997

TVNZ respond to the four points made in the Minister's letter.

First, the Minister was given the opportunity on 2 June to respond to the comments,

on One Network News despite it being a public holiday. Had Mr McCully accepted

this offer he would have received a transcript of the 60 Minutes programme.

Secondly, TVNZ considered that Mr Kirton responded to the key questions

succinctly and fairly, both in respect of his department and Mr McCully. To have

interviewed Mr McCully it considered, would have been repetative and unnecessary.

Thirdly and Finally, there is no obligation upon a broadcaster to run balancing

comment just because a person is named in a critical way in a programme. It said that

if such an obligation existed, news and current affairs reporting would be rendered

absurd. Its view was that in this case the reference to Mr Mccully was peripheral to

the story being told.