BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

[This summary does not form part of the decision.]

The Authority has not upheld complaints under the accuracy, balance and fairness standards from several complainants about a broadcast of AM on 1 September 2022. The morning news broadcast contained two segments about a recent ‘backtrack’ by the Government on a proposal to apply GST to management services supplied to managed funds (including KiwiSaver). During the first segment, this was described as ‘a tax on your retirement savings’. In the second segment, the specifics of the proposed tax were clarified: ‘technically it wasn't a tax on KiwiSaver funds, it was a tax on the fees applied to KiwiSaver funds’. The Authority found the alleged inaccuracy in the first segment was immaterial to the audience’s understanding of the broadcast as a whole, and mitigated by the second segment where a more detailed description of the proposal was provided. The Authority also found the broadcaster sufficiently presented significant viewpoints in the circumstances. The fairness standard did not apply.

Not Upheld: Accuracy, Balance, Fairness

Background

[1]  On 25 May 2022, the Inland Revenue Department | Te Tari Taake finalised a Regulatory Impact Statement,¹ recommending all management services provided on managed funds (including KiwiSaver funds) be subject to GST. This would be a change from the status quo, which currently allows for certain exemptions to the application of GST on financial services. The Regulatory Impact Statement noted:

• The change was proposed in a context of inconsistency and complexity in the current GST treatment of different types of management services supplied to managed funds, and a consequent ‘uneven playing field’.²
• The proposed change would result in the collection of additional GST of ‘approximately $225 million per annum from 1 April 2026’. It was ‘assumed that most of the additional GST would flow through to retail investors, such as KiwiSaver members, in the form of higher fees’ and noted that if investor fees are ‘increased, this will reduce after-fee returns and therefore the total amounts that are reinvested and saved over time.’³
• Financial Markets Authority modelling showed the recommended option would lead to KiwiSaver fund balances being reduced by $103 billion by 2070.⁴

[2]  On 30 August 2022 the Government introduced the Taxation (Annual Rates for 2022-2023, Platform Economy, and Remedial Matters) Bill, which amongst many things, proposed ‘that services supplied by managers and investment managers to managed funds and retirement schemes would be subject to 15% GST’.⁵

[3]  On 30 August 2022, after the announcement of the Bill by the Government, several articles were published by media and industry, discussing the implications of the Bill for New Zealanders’ KiwiSaver accounts, and stating that the cost of the added GST would likely be passed on to investors, which would result in a loss to investors over time.⁶

[4]  On 31 August 2022, the Government announced it would not proceed with the proposal, stating:⁷

It’s important to clear up some inaccurate representation of the proposal. New Zealanders’ KiwiSaver contributions and balances were not going to be taxed under this legislation. However it is clear from the reaction to this proposal that it has caused concern for Kiwis…

The broadcast

[5]  The following day, on 1 September 2022, the AM show included two segments on the proposed change and the Government’s subsequent withdrawal of it. The first segment – broadcast at 6.03am – was a discussion between the three hosts: Ryan Bridge; Melissa Chan-Green; and Bernadine Oliver-Kerby. The second segment – broadcast at 7.07am – involved Bridge interviewing Nicola Willis MP, Deputy Leader and Finance spokesperson for the National Party. The complaints relate to the first segment, and allege statements made by Bridge were inaccurate and misleading.

Segment 1:

[6]  This segment included the following excerpts (interspersed with footage of Willis in Parliament saying this was ‘Labour’s day of shame’ and referring to relevant members of Parliament as ‘sneaky’):

Chan-Green:  I know someone who will feel like they've been in that kind of position [stuck upside down], David Parker probably.

Bridge:           And Jacinda Ardern, and Grant Robertson. The whole lot of them, in fact the whole Cabinet has been upside down. Maybe that's what happened when they made the decision to introduce a tax on your retirement savings, is that they were all doing it upside down. I mean, what other explanation can you possibly come up with for what we witnessed yesterday? What on earth was that?

                        …

Bridge:           So there’s two options, right? Either they were really incompetent or they are really conniving and they tried to hide this and they thought that we wouldn't notice that $100 billion could be about to be shaved off of our savings by 2070. Either they thought, it's just a technical change, it doesn't really affect much, let's go ahead and do it. We don't need to put it in the press release. Which is completely incompetent and a total misread of the electorate of you and I. Or they thought … I know, this is naughty, so what I'll do is I'll just put it under here and I'll hide it away. Sneaky, as Nicola Willis puts it. Either way, you look at this, it is bad for the Government.

                        …

Bridge:           I mean, the good thing is, and to their credit, they listened very quickly, they realized the writing was on the wall and they ditched the whole thing.

[7]  The segment continued with some discussion of other policies that the Government had ‘backtracked’ on, acknowledgement that the Government had listened to the public on those occasions and reversed its policies, and some critique that the Government was ‘not listening to industry’ in the first place, when making policy.

Segment 2:

[8]  An hour later, Bridge interviewed Willis. The segment contained the following dialogue:

Bridge:           It's been quite the 24 hours. National Party Deputy Leader Nicola Willis is with us this morning. I want to talk about yesterday's U-turn, obviously... You've said that it was more sneaky and conspiratorial, rather than incompetence. Why do you say that?

Willis:             Because a press release went out about this tax bill, and it did not contain the words KiwiSaver. And yet, when we went and read the fine print there, and the regulatory impact statement, there was this new GST tax on KiwiSaver that was going to create $225 million more dollars in tax revenue for the Minister of Finance each year…

Bridge:           It's interesting, isn't it? Because when you read that press release that they put out, they do mention the other taxes that were being introduced or changes that were being made to Uber and Airbnb, which only netted them $47 million. And yet the one that nets them $225 million was left off. It does seem strange.

Willis:             Exactly. It's all a bit suspicious. And let's remember, this isn't all David Parker's fault. He took these proposals to a Cabinet committee chaired by the Minister of Finance, Grant Robertson, and he gave it the rubber stamp. Then it went up to Cabinet itself, chaired by the Prime Minister, and she gave it the rubber stamp. So this isn't one guy's failure. This is the Government collectively who said we're okay with putting a tax on New Zealanders’ KiwiSaver. And it wasn't till it got into National's hands that the red flag went up, and New Zealanders spoke out. And that's how we got this backdown.

Bridge:           Have you been guilty of peddling misinformation on this, calling it a KiwiSaver tax when technically it wasn't a tax on KiwiSaver funds, it was a tax on the fees applied to KiwiSaver funds?

Willis:             No Ryan. All of the information that we've shared with New Zealanders is taken directly from the advice tabled in Parliament and that advice was crystal clear. It said this will remove $103 billion in value from New Zealanders’ retirement savings. It will be a tax effectively that will be passed on to every individual KiwiSaver. That's not misinformation, that’s facts.

                        …

Bridge:           Now, we did ask the Revenue Minister, David Parker, to come on the programme. He told us that he was unavailable. We also asked him yesterday when this was first coming to the fore and we were given the same response.

The complaints

[9]  The complainants alleged the broadcast breached the accuracy, balance, and fairness standards of the Code of Broadcasting Standards in New Zealand. The complaints are summarised as follows:

Accuracy

• The statement by Bridge that the Government had introduced a ‘tax on your retirement savings’ was misleading and false. There was no tax on KiwiSaver, instead there was a proposed law change which was intended to ‘even the playing field’ and ‘close a tax loophole’ by making fund managers pay GST on their service fees. (Dobson, Bate and Takitimu)
• ‘A Fund Management company may choose NOT to pass on the costs so it was wrong for Ryan Bridge to refer to a tax on retirement savings.’ (Bate and Takitimu)
• The distinction between the two types of GST was ‘made in NZ Parliament by the Prime Minister and by other media on Wednesday 31 August 2022, the day before Bridge chose to make these misleading and false statements. Therefore the remarks made by Bridge are likely to be deliberate misinformation (disinformation) because there was an abundance of awareness in the public domain in the 24hrs before Bridge made his misleading statements.’ (Dobson, Bate, and Takitimu)
• The presenter ‘referred to a matter with little regard to the complete accuracy of the words he chose to describe the scenario he was talking about.’ (Tocker)
• Dobson further complained that the broadcaster’s claim (referred to below) that the statement was opinion, and therefore outside the standard, rendered the ‘existence of the standard pointless’.

Balance

• Dobson stated the broadcast was unbalanced as it presented the arguments of one side of the political divide as fact. The broadcaster’s claim that balance was achieved over time within other media circumvents the purpose of the standard. The other perspectives presented in the broadcast were ‘token at best’, and the host made a false claim, and then allowed others to amplify it.
• Takitimu also raised the balance standard, but did not specify how it was breached.  

Fairness

• Only Takitimu raised the fairness standard (but, again, without any specific explanation of how it was breached).

The broadcaster’s response

[10]  Warner Bros. Discovery (WBD) did not uphold the complaints, stating:

Accuracy

• It ‘strongly refutes that the Broadcast contained misinformation or disinformation. There was no deliberate attempt to mislead the audience.’
• ‘“The requirement for factual accuracy does not apply to statements which are clearly distinguishable as analysis, comment or opinion, rather than statements of fact.” In [WBD’s] view, the comments in this discussion were clearly identifiable as comment, opinion or analysis to which the Accuracy standard does not apply.’
• ‘Even if [WBD] were to consider this standard applied, [WBD] does not agree the audience was materially misled by the presenter’s comment. The net effect of the proposed rule change ultimately would have meant less money overall in Kiwisaver funds for retirees. The issue was widely reported and this term was used across the board, as well as references to it as a “wealth tax.”’
• As ‘the presenter pointed out in the Broadcast, the comment was in relation to a technical point. Furthermore, the ‘tax’ was fully explained in the presenter’s interview with Ms Willis when he said, “when technically it was not a tax on Kiwisaver funds, it was a tax on the fees applied to Kiwisaver funds.”’
• WBD did ‘not agree that referring to the rule changes as a tax would have significantly affected viewers’ understanding of the overall Broadcast considering the net effect of the proposal was less money for Kiwisaver recipients.’

Balance

• ‘The Broadcast presented appropriate perspectives on the issue under discussion. While some of the discussion was critical of the government’s policy U-turn, at various points, the presenters did acknowledge the positives of the U-turn, recognising that it represented the fact that the government is listening.’
• ‘Considering the amount of coverage this particular issue attracted, the Committee is confident viewers could reasonably be expected to be aware of other perspectives beyond AM's discussion on this topic.’

Fairness

• WBD did ‘not consider the discussion went beyond the level of robust scrutiny and political analysis that could be reasonably expected following a significant policy u-turn like the one under discussion. We do not agree that the presenters’ discussion was unfair to the government or that it resulted in any damage to its reputation.’

The standards

[11]  The purpose of the accuracy standard⁸ is to protect the public from being significantly misinformed.⁹ It states broadcasters should make reasonable efforts to ensure news, current affairs or factual content is accurate in relation to all material points of fact, and does not mislead. Where a material error of fact has occurred, broadcasters should correct it within a reasonable period after they have been put on notice.

[12]  The balance standard¹⁰ ensures competing viewpoints about significant issues are presented to enable the audience to arrive at an informed and reasoned opinion.¹¹

[13]  We consider the accuracy and balance standards best respond to the nature of the complaints raised. While Takitimu also raised the fairness standard, the purpose of the fairness standard¹² is to protect the dignity and reputation of those featured in programmes.¹³ Takitimu did not identify a person or organisation alleged to have been treated unfairly. Their only arguments on referral mentioned ‘blatant lying’ and AM show content being ‘factually incorrect’. These appear to concern the fairness of ‘statements’ which is a matter for the accuracy standard. Accordingly, our decision does not address the fairness standard.

Our analysis

[14]  We have watched the broadcast and read the correspondence listed in the Appendix.

[15]  As a starting point, we considered the right to freedom of expression. It is our role to weigh up the right to freedom of expression against any harm potentially caused by the broadcast. We may only intervene when the limitation on the right to freedom of expression is demonstrably justified in a free and democratic society.¹⁴

[16]  The harm alleged by the complainants is that the broadcast inaccurately portrayed the proposed GST tax on managed funds services as a tax on people’s KiwiSaver savings, potentially leaving many New Zealanders with an incorrect and negative understanding of the Government’s policy. As noted above, while the complaints focus on the first segment in the broadcast, our role is to consider the impact of the programme as a whole. Accordingly, where relevant, our analysis addresses excerpts from the second segment described in paragraph [8].

[17]  The broadcast in this case carried significant public interest. It addressed Government policy which had the potential to impact New Zealanders’ retirement funds. The introduction and withdrawal of the proposal within 24 hours makes the topic of further public interest. The value of this broadcast means we would require a correspondingly high level of potential harm to justify restriction of the broadcaster’s freedom of expression. For the reasons outlined below, we have identified no potential harm reaching such a threshold.

Accuracy

[18]  The complaints under this standard concern Bridge’s statement that the Government had proposed ‘a tax on retirement savings’ (when the proposal concerned a tax on services provided to managed funds). The first issue for us is whether this statement constituted analysis, comment or opinion rather than a statement of fact.

Analysis, comment or opinion

[19]  The requirement for factual accuracy does not apply to statements which are clearly distinguishable as analysis, comment or opinion, rather than statements of fact.¹⁵ However, broadcasters should still make reasonable efforts to ensure analysis, comment or opinion is not materially misleading with respect to facts referred to, or upon which the analysis, comment or opinion is based.

[20]  When assessing whether statements are analysis, comment or opinion, the following factors may be relevant:¹⁶

• The language used
• The type of programme
• The role or reputation of the person speaking
• The subject matter
• Whether the statement is attributed to someone
• Whether evidence or proof is provided

[21]  Bridge’s statement that the Government had proposed ‘a tax on retirement savings’ is a statement which used definitive language, was made on a news and current affairs show by a presenter, and is a statement which is verifiable. In our view, it is a statement of fact and the accuracy standard applies.

Materiality

[22]  The accuracy standard is only concerned with material inaccuracies. Technical or other points unlikely to significantly affect viewers’ understanding of the programme as a whole are not considered material.¹⁷ Context can aid the consideration of whether an aspect of a broadcast was materially accurate.¹⁸

[23]  In our view, the focus of the programme as a whole was the proposed introduction of a tax which would negatively impact New Zealanders’ retirement savings, the allegedly ‘sneaky’ approach by the Government for not referring to the proposal in its press release, and the subsequent ‘backtracking’ after criticism of the proposal.

[24]  While we acknowledge the complainants’ concerns, and accept that the proposal was technically not a ‘tax on retirement savings’, we do not consider the exact terminology was material, as it would not have significantly affected the audience’s understanding of the item as a whole (as described above). In making this finding we took into account:

• The Regulatory Impact Statement mentioned above, which states: ‘It is assumed that most of the additional GST would flow through to retail investors, such as KiwiSaver members, in the form of higher fees.’¹⁹
• Accordingly, the net effect of the proposed tax was projected to be a negative impact on New Zealander’s KiwiSaver balances over time (estimated to be a reduction by $103 billion by 2070).²⁰
• While the complainants are correct that providers could choose not to pass on the extra cost, and absorb it themselves, advice provided to Government by major stakeholders in the Regulatory Impact Statement was that this was unlikely.²¹

[25]  In addition to our finding above, the Authority also notes that any inaccuracy in Bridge’s initial description of the proposal was mitigated by the later segment in which Bridge provided a more detailed description of the proposal: ‘technically it wasn't a tax on KiwiSaver funds, it was a tax on the fees applied to KiwiSaver funds’.²²

[26]  In these circumstances and given the value in the broadcast, we have not found harm at a level justifying regulatory intervention in this case, and do not uphold this complaint under the accuracy standard.

Balance

[27]  A number of criteria must be satisfied before the requirement to present significant alternative viewpoints is triggered. The standard applies only to ‘news, current affairs and factual programmes’ which discuss a controversial issue of public importance.²³

[28]  The Authority has typically defined an issue of public importance as something that would have ‘significant potential impact on, or be of concern to, members of the New Zealand public.’ A controversial issue is one which has topical currency and excites conflicting opinion or about which there has been ongoing public debate.²⁴

[29]  The broadcast discussed proposed changes to the application of GST in relation to managed funds services. This proposal had the potential to impact all New Zealanders, and was the subject of significant media coverage,²⁵ resulting in the proposal’s withdrawal less than 24 hours after its introduction. We therefore consider it a controversial issue of public importance, and the balance standard applies to the broadcast.  

[30]  The next step in our analysis is to assess whether the broadcaster sufficiently presented significant viewpoints in the circumstances.²⁶ The balance complaints appear founded on the basis that the broadcast ‘presented the arguments of one side of the political divide as fact, while not giving anyone a right of reply’.

[31]  For the following reasons we have found the broadcaster did sufficiently present significant viewpoints in the circumstances.

[32]  Firstly, the standard states that the requirement to present significant points of view (ie a pro-Government perspective) is likely reduced, or in some cases negated, where it is clear from the programme’s introduction and the way in which the programme is presented that the programme was not claiming, or intended, to be a balanced examination of an issue, and the programme was signalled as approaching the issue from a particular perspective.²⁷

[33]  In this case the introduction to the first segment “I know someone who will feel like they have been [stuck upside down]”, clearly signalled its perspective as a critique of the Government’s proposal and subsequent backtrack.

[34]  Secondly, the standard does not require equal time to be given to each significant viewpoint on a controversial issue of public importance.²⁸ We consider that while there was criticism of the Government’s policy in the broadcast, there were also comments which provided balance, including:

• As outlined under the accuracy standard analysis, Bridge’s subsequent suggestion that Willis was ‘guilty of peddling misinformation on this, calling it a KiwiSaver tax when technically it wasn't a tax on KiwiSaver funds, it was a tax on the fees applied to KiwiSaver funds’.
• Several positive comments in the first segment about the Government’s decisions to backtrack on policies when it was clear the public was not in favour of them, with the hosts suggesting the Government had listened to the public on those occasions.
• An interview with Francis Cook, broadcast directly after Bridge’s interview with Willis, which included criticism of the National Party’s history of interfering with KiwiSaver.
• Footage of Rt Hon Jacinda Ardern and Hon David Clark explaining Labour’s reasons for introducing, and then withdrawing the proposal in the second segment (albeit in a clip that was intended to be a light‑hearted look at their statements).

[35]  Thirdly, the balance standard is clear that the requirement to present additional viewpoints does not apply where ‘the audience can reasonably be expected to be aware of significant viewpoints from other media coverage’. It does not require every significant viewpoint to be presented in every programme that discusses a particular controversial issue of public importance.²⁹

[36]  The relevant issue was covered extensively in the media in the days before and after this broadcast.³⁰ Bates, Takitimu and Dobson all acknowledged: ‘Such distinctions were made in NZ Parliament by the Prime Minister and by other media on Wednesday 31 August 2022, the day before Bridge chose to make these misleading and false statements’. In our view, the audience could reasonably be expected to be aware of views expressed in other coverage, including coverage by other broadcasters or media outlets.³¹

[37]  In these circumstances, we find no breach of the balance standard in this instance, nor any harm that justifies our intervention.

For the above reasons the Authority does not uphold the complaint.
Signed for and on behalf of the Authority

Susie Staley
Chair
20 December 2022    

Appendix

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

1  Shane Dobson’s formal complaint – 2 September 2022

2  Linda Tocker’s formal complaint – 2 September 2022

3  Keith Takitimu’s formal complaint – 1 September 2022

4  Cheryl Bate’s formal complaint – 2 September 2022

5  WBD’s response to the complaints – 28 September 2022

6  Dobson’s referral to the Authority – 29 September 2022

7  Tocker’s referral to the Authority – 29 September 2022

8  Takitimu’s referral to the Authority – 29 September 2022

9  Bate’s referral to the Authority – 29 September 2022

10  WBD’s confirmation of no further comment – 25 November 2022

¹ Inland Revenue Department | Te Tari Taake “Regulatory Impact Statement: GST on management services supplied to managed funds” <taxpolicy.ird.govt.nz>
² As above, page 5, at [7]
³ As above, page 11, at [51]
⁴ As above, page 10, at [49]
⁵ Taxation (Annual Rates for 2022-2023, Platform Economy, and Remedial Matters) Bill, at Explanatory note – GST on fees charged to managed funds
⁶ “Plan to charge GST on KiwiSaver fees ‘a wealth tax’ – fund manager” RNZ (online ed, 30 August 2022); Thomas Coughlan and Tamsyn Parker “Government quietly introduces $103 billion tax on KiwiSaver” The New Zealand Herald (online ed, 30 August 2022); Rob Stock “’Tax grab’: Government plans to levy GST of $225 million each year on KiwiSaver fees” Stuff (30 August 2022); “Proposed KiwiSaver tax would reduce balances by $103b by 2070” National Business Review (online ed, 30 August 2022)
⁷ Hon David Parker “GST proposal for KiwiSaver fees will not go ahead” (31 August 2022) The New Zealand Government I Te Kāwanatanga o Aotearoa <beehive.govt.nz>
⁸ Standard 6, Code of Broadcasting Standards in New Zealand
⁹ Commentary, Standard 6, Code of Broadcasting Standards in New Zealand at page 16
¹⁰ Standard 5, Code of Broadcasting Standards in New Zealand
¹¹ Commentary, Standard 5, Code of Broadcasting Standards in New Zealand at page 14
¹² Standard 8, Code of Broadcasting Standards in New Zealand
¹³ Commentary, Standard 8, Code of Broadcasting Standards in New Zealand at page 20
¹⁴ Introduction, Code of Broadcasting Standards in New Zealand at page 4
¹⁵ Guideline 6.1
¹⁶ Commentary, Standard 6, Code of Broadcasting Standards in New Zealand at page 16
¹⁷ Guideline 6.2
¹⁸ See for example: Wellington Palestinian Group and Discovery NZ Ltd, Decision No. 2022-082 at [14]–[15]
¹⁹ Inland Revenue Department | Te Tari Taake “Regularity Impact Statement: GST on management services supplied to managed funds” <taxpolicy.ird.govt.nz>, at page 11, paragraph [51]
²⁰ As above, page 10, at [49]
²¹ As above, page 10, at [45] and [48]
²² See for example: Wellington Palestinian Group and Discovery NZ Ltd, Decision No. 2022-082, at [5]; and McDonald and Television New Zealand Ltd, Decision No. 2009-096 where alleged inaccuracies were mitigated by subsequent rectification, or clarification in the same broadcast 
²³ Guideline 5.1
²⁴ Guideline 5.1
²⁵ See sources at footnote 6, above; and Sam Stubbs “Is GST on KiwiSaver fees a stealth wealth tax” Stuff (online ed, 31 August 2022); Anna Whyte “Government makes U-turn on KiwiSaver fee GST proposal” 1 News (online ed, 31 August 2022); “Amelia Wade “Axed KiwiSaver tax: Why the Government backed down” Newshub (online ed, 31 August 2022)
²⁶ Guideline 5.1
²⁷ Guideline 5.4
²⁸ Guideline 5.3
²⁹ Guideline 5.2
³⁰ See sources at footnotes 6 and 25, above
³¹ Guideline 5.4