BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

The Department of Conservation’s (DOC) management programme which involved the shooting of thar (mountain goats), was addressed during the John Banks Breakfast Show, broadcast on Radio Pacific between 6.00–9.00am on 10 August 1999. The host of the programme expressed his strong displeasure at DOC’s actions. He referred to DOC staff using phrases such as "filthy low life", and "filthy perverts", and expressed a wish that their helicopter would suffer a power failure.

The Department of Conservation complained to Radio Pacific Ltd that the language used in the broadcast failed to maintain standards of decency and good taste, and that the host did not refer to the thar management process which it had developed.

Declining to uphold the complaint, Radio Pacific argued that the strong language used was appropriate on a station which valued the power of free speech.

Dissatisfied with Radio Pacific’s decision, DOC referred the complaint to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.

For the reasons below, the Authority upholds the complaint and orders the broadcaster to broadcast a summary of the decision and to pay costs of $500 to the Crown.

Decision

The members of the Authority have read a transcript of the item complained about, and have read the correspondence which is listed in the Appendix. In this instance, the Authority determines the complaint without a formal hearing.

The shooting of thar was an issue dealt with on Radio Pacific’s John Banks Breakfast Show talkback programme broadcast between 6.00–9.00am on 10 August. A caller expressed his dismay that some thar had been shot by the Department of Conservation (DOC). The host, John Banks, commented:

The filthy low life from the Department of Conservation doing this to these creatures of God. These beautiful ... What colour eyes have they got?

The caller replied and the presenter continued:

And I’ve heard that these swine load themselves into gun ships with high powered rifles and shoot them off the cliffs. Well, all I can hope for today is there’s a tremendous power failure in one of those helicopters.

He also referred to the departmental officers in the following terms:

Well, I know these filthy perverts get a lot of pleasure from it. ...

And

These must be the worst pack of bastards to work for the Public Service.

DOC’s Director General (Hugh Logan) complained to Radio Pacific that the comments did not meet the broadcasting standards relating to good taste and decency. He wrote:

By way of information, New Zealanders have had an opportunity to have their say in how DOC manages the impacts of thar, through a public consultation process. This has resulted in a thar control plan. Thar are being managed in a way that protects conservation values while still allowing hunting opportunities for the public. In fact, recreational hunters control thar more often than DOC staff or contractors.

Radio Pacific assessed the complaint against Principle 1 of the Radio Code of Broadcasting Practice. It reads:

Principle 1

In programmes and their presentation, broadcasters are required to maintain standards which are consistent with the observance of good taste and decency.

Guidelines

1a  Broadcasters will take into consideration current norms of decency and good taste in language and behaviour bearing in mind the context in which any language or behaviour occurs and the wider context of the broadcast eg time of day, target audience.

Radio Pacific considered that the standard had not been transgressed.

DOC was dissatisfied with this decision. When it referred the complaint to the Authority, it referred to the phrases "filthy low life", "filthy perverts", and "the worst pack of bastards ever to work for the public service", and asserted that those terms were "indecent and unjustifiable".

DOC explained that it was committed to quality conservation management in the area of animal pest control. Humane treatment of animals, it added, was an important departmental principle. DOC’s Mr Logan had particular concern that the talkback host had expressed a wish that the helicopter carrying DOC staff should lose power. He also commented:

I acknowledge that the nature of talkback radio and, in particular, John Banks’ style as a well-known talkback host, means that strong language and discussion of issues is to be expected. However, Mr Banks’ comments on August 10 were outside the current norms of decency in good taste in language. This is not a case of DOC staff having a "thin skin". Offensive insults using abusive language and expressing the desire for serious accidents, even death, are unacceptable for broadcast.

In its report to the Authority, Radio Pacific noted that DOC acknowledged the host used "strong language", and responded:

We maintain that the language used by Mr Banks is the strong language referred to by Mr Logan. It is language used in everyday life. It is language used by all sectors of the community.

Radio Pacific is a vehicle by which hosts and listeners are encouraged to express themselves without recriminations.

The Radio Pacific listening audience is a mature audience, an audience that is not easily swayed or influenced.

Radio Pacific also stated that the majority of its listeners were aged 60 plus, and that Radio Pacific represented "The Power of Free Speech".

No tape was available, it added, "due to the time lapse between the date of broadcast and the request for the tape".

In his final comment, DOC’s Mr Logan disagreed with Radio Pacific’s statement that the language used by the host was "the strong style expected on talkback radio". He continued to assert that the language contravened the current norms of good taste and decency. Mr Logan said that the transcript disclosed that the host knew little about thar, but nevertheless expressed offensive and inaccurate opinions. Mr Logan also drew a distinction between comments made by a caller and comments made by the host of a talkback programme. In his opinion, the host’s comments were irresponsible. He also wrote:

There is nothing wrong with Radio Pacific’s strong stand on free speech, and nothing wrong with John Banks not agreeing with thar management techniques. However, this is not the point in discussion – it is the language and the context of the broadcast. I believe it was offensive and inappropriate for John Banks to choose the words he did when he discussed thar control on Radio Pacific.

The Authority’s Findings

After its initial consideration of the complaint, the Authority considered that in addition to the standard under which Radio Pacific had assessed the complaint, it should also be reviewed against Principle 5 of the Code. It reads:

Principle 5

In programmes and their presentation, broadcasters are required to deal justly and fairly with any person taking part or referred to.

Radio Pacific was then asked to assess the complaint under this standard. In its response, Radio Pacific questioned whether the standard applied as it interpreted the focus of the Principle to be procedural. The substance of the complaint, it wrote, was the "very strongly expressed views", rather than procedural unfairness or irregularity.

The Authority does not agree with the broadcaster’s approach to Principle 5. It acknowledges that it raises issues of procedural fairness, but it does not accept that it is confined to this interpretation. Rather, the Principle is concerned with the way in which participants and people referred to are dealt with. Further, the Authority observes that the guidelines assist in the application of the Principles . They are not definitive of the full scope of each Principle’s application.

The Authority has held in other complaints (eg No: 1999-196, 11.11.99, a complaint from Savoy Equities Ltd about a broadcast by Radio Pacific Ltd) that where strong opinions about people are expressed without giving them an opportunity to respond adequately, then that may breach Principle 5. For the reasons which are amplified on below, the Authority is persuaded that it was unjust and unfair to refer to DOC staff without, at the very least, giving them an opportunity to rebut that criticism on the broadcast or within a reasonable time thereafter. That did not happen here.

The broadcast complained about referred to the DOC programme for the management of thar, and included the following exchange. The presenter asked if thar would make good pets and the caller replied:

CALLER:            No ... . I don’t think so. You wouldn’t be able to keep them in a room or in
                         a paddock. They can climb vertical faces and, you know, they live up ... right
                         up in the rocks.

PRESENTER:      And I’ve heard that these swine load themselves into gun ships with high
                         powered rifles and shoot them off the cliffs.

CALLER:             Yes, they’re just blown away. It called search and destroy. It’s utterly ...

PRESENTER:      (Groans) Well, all I can hope for today is there’s a tremendous power
                          failure in one of those helicopters.

CALLER:             Well, I’ll tell you what, it’ll all be documented because there’ll be a goon
                         sitting in the back ... A department of conservation goon sitting in the back
                         filming it all for his own pleasure.

PRESENTER:      Well, I know these filthy perverts get a lot of pleasure from it but ...

The Authority considers the presenter’s final comment to be insulting and inaccurate, and at the least to imply that DOC staff took pleasure from their duty to destroy animals. As this is offensive, the Authority finds that the remarks failed to maintain standards consistent with the observance of good taste and decency, and concludes that it contravenes Principle 1. Moreover, as it was unfair and unjust, the Authority considers that Principle 5 was transgressed. A little later, while berating the Department’s pest control process, the caller commented:

CALLER:             I mean, they weren’t satisfied with getting rid of a few people at Cave
                         Creek, now they’ve got to go up and start on the animals.

The presenter responded:

PRESENTER:      These must be the worst pack of bastards ever to work for the public
                          service.

The Authority decides that the caller’s observation also breached Principle 1. The Authority considers that the presenter’s responsibility was, in the context of such a flagrant breach, to respond in such a way as to ameliorate the offensiveness of the remark. That did not occur and, accordingly, the Authority finds that the comment and the presenter’s response also contravened the standard.

Finally, the Authority reviews the presenter’s express wish for a "tremendous power failure" to the Department’s helicopter. That seems to suggest a wish for a helicopter crash. However the statement is ambiguous and the Authority is prepared to give the broadcaster the benefit of the doubt. While it declines to view this statement as being a breach of the Principles, it considers that it adds to the generally distasteful tone of the broadcast.

For the above reasons, the Authority upholds the complaint that the broadcast by Radio Pacific Ltd of the John Bank’s Breakfast Show on 10 August 1999 breached Principles 1 and 5 of the Radio Code of Broadcasting Practice.

Having upheld a complaint, the Authority may impose penalties under s.13(1) and s.16(4) of the Broadcasting Act 1989. It invited submissions from the parties as to penalty.

The Authority has considered these submissions. The broadcaster advised that the host acknowledged his error of judgment, and submitted that the publication of the decision was in itself an appropriate penalty. The complainant considered that the broadcast of a statement which summarised the decision would be appropriate. It did not seek costs, but suggested that an order of payment of costs to the Crown would be a suitable signal to the broadcaster of the gravity of the breach.

The Authority agrees with the complainant’s submission in this instance and, in view of its previous decisions in similar cases, imposes the following orders.

Order

Pursuant to s.13 of the Broadcasting Act 1989, the Authority orders Radio Pacific Ltd to broadcast a statement, to be approved by the Authority, summarising this decision. That statement shall be broadcast within one month of the date of this decision between 7.00–8.00am on a date to be approved by the Authority. The Authority also requests that a tape of the statement be provided.

Pursuant to s.16(4) of the Act, the Authority orders Radio Pacific Ltd to pay costs of $500.00 to the Crown within one month of the date of this decision.

Signed for and on behalf of the Authority

Sam Maling
Chairperson
3 February 2000

Appendix

In the determination of this complaint, the Authority has considered the following correspondence received from the parties.

1. Department of Conservation’s Complaint to Radio Pacific Ltd – 11 August 1999

2. Radio Pacific Ltd’s Response to the Formal Complaint – 1 September 1999

3. Department of Conservation’s Referral to the Broadcasting Standards Authority
    – 13 September 1999

4. Radio Pacific’s Report to the Authority – 12 October 1999

5. Department of Conservation’s Final Comment – 26 October 1999

6. Radio Pacific’s Report to the Authority – 22 November 1999