BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaints under section 8(1)(a) of the Broadcasting Act 1989
Nine to Noon – interview about legislation change to introduce paying the minimum wage to disabled people – allegedly unbalanced, inaccurate and unfair

Findings
Principle 4 (balance) – presenter adopted aggressive manner with two interviewees – prevented interviewees from presenting significant viewpoints to listeners – listeners deprived of important information on controversial issue under discussion – unbalanced – upheld

Principle 5 (fairness) – one aspect of fairness complaint subsumed into consideration of Principle 4 – programme not unfair to Minister for Disability Issues – not upheld

Principle 6 (accuracy) – no inaccuracies – not upheld

Order
Section 13(1)(a) – broadcast of a statement 

This headnote does not form part of the decision.

Broadcast

[1]   On the Nine to Noon programme on the morning of 25 May 2007, presenter Kathryn Ryan introduced a segment as follows:

The downside of the move to require the minimum wage to be paid to disabled people, including those working in sheltered workshops. A law change which takes effect in November and now, as some predicted at the time the law was being debated, many workshops are closing. Two-thirds of the IHC workshops have already closed and the rest are under review. Many of those who did have jobs in these workshops are now undertaking vocational training instead. Other small private providers of employment for the disabled are getting exemptions from the minimum wage requirement, thus working around it. But this morning you’ll hear from a not-for-profit business owner who says, despite this, his ability to keep employing disabled people after November, when the law takes effect, is touch and go.

[2]   The presenter interviewed Sean Stowers, from the office of IHC intellectually disabled employment services, Peter Fraher, the managing director of Abilities Group, the Hon Ruth Dyson, the Minister for Disability Issues, and Marion Miller, the mother of an intellectually disabled young man.

Complaints

[3]   The Hon Ruth Dyson, Mike Gourley and DPA (New Zealand) Incorporated made separate formal complaints about the programme to Radio New Zealand Ltd, the broadcaster. All three complainants alleged that the programme was unbalanced, inaccurate, and unfair.

Principle 4 (balance)

Ms Dyson’s complaint

[4]   Ms Dyson contended that the presenter’s introduction, about “the downside” of the move to pay the minimum wage to disabled people, was inappropriate. It had been delivered in a very negative and weary tone, she said, and was designed to make listeners believe that the law change was both responsible for sheltered workshops closing, and was a “bad thing”.

DPA (New Zealand) Incorporated’s complaint

[5]   DPA stated that the presenter’s introduction, which referred to “the downside” of the move to require the minimum wage to be paid to disabled people, had set the scene and tone for the whole item.

[6]   The complainant noted that guideline 4a required broadcasters to “respect the rights of individuals to express their own opinions”. It contended that the presenter had been unwilling to accept any comment “that did not agree with her preconceived ideas”. DPA pointed to the presenter’s refusal to accept that there was a difference between an allowance and a wage, and noted that she had told Mr Stowers that she could not put much weight on what he was telling her.

[7]   DPA contended that the programme had not constituted a reasonable opportunity for significant points of view to be presented. It stated that the presenter had interrupted Mr Stowers at least 11 times, and Ms Dyson seven times. In contrast, it wrote, the presenter had only interrupted Ms Miller once, and that was to reinforce a point she had made by repeating it.

[8]   The complainant maintained that the presenter had interrupted points of view that she found distasteful. As an example, DPA noted the presenter had interrupted Ms Dyson saying “Oh for goodness sake! So you’re not, you cannot tell me whether these people have jobs or not and you won’t”.

Mr Gourley’s complaint

[9]   Mr Gourley complained that the panel of interviewees did not represent a balance of those affected by the law change. He noted that the panel did not contain an intellectually impaired person, or other disability community representative.

[10]   He also contended that the presenter was biased, and that it was clear from her tone and questions that she was “pursuing the agenda of those who have opposed the law change”. For instance, he said, when Ms Dyson attempted to explain that people attending sheltered workshops were not paid workers but were paid through benefits, the presenter “spluttered that she did not care how people were paid”. In Mr Gourley’s view, this was a critical point that deserved a further hearing.

[11]   The complainant stated that the presenter’s approach was not simply a case of playing devil’s advocate; he contended that the presenter was “bullying and harassing” to Ms Dyson and Mr Stowers.

Principle 5 (fairness)

Ms Dyson’s complaint

[12]   Ms Dyson contended that she and Mr Stowers were not dealt with in a fair manner. She noted that the presenter had repeatedly interrupted her and Mr Stowers, and that there was a “complete change in tone and attitude” when the presenter addressed Ms Miller. In Ms Dyson’s view, the presenter had treated Mr Stowers and her in a vastly different manner to the other two guests.

[13]   Ms Dyson stated that she had agreed to participate in a panel discussion in the studio in Wellington, but because the producer changed the day of the interview she had to speak from her car at the side of a busy road in Auckland. This information had not been given to listeners, she wrote, and the technical difficulties of hearing and trying to be heard were not acknowledged by the presenter. Ms Dyson stated that listeners had been given the clear impression that she was not responding to the presenter’s questions either because she did not have the answers, or was refusing to answer.

DPA (New Zealand) Incorporated’s complaint

[14]   DPA contended that the broadcaster had not dealt justly and fairly with Ms Dyson and Mr Stowers. It said that the presenter had repeatedly dismissed Mr Stowers comments by saying things like “Not really too worried about that”, “but they were being paid”, “I don’t care”, “you can’t tell me”, “that’s not the same”, and “I can’t really put much weight on what you’re telling me”. In the complainant’s view, these comments demonstrated a failure to deal fairly with Mr Stowers.

[15]   DPA also referred to a similar series of exchanges between the presenter and Ms Dyson, in which the presenter “dismisse[d] and deride[d]” Ms Dyson’s comments or attempts to inform. The complainant pointed to examples such as “Very nice Ms Dyson, very nice, but…”, “Can you tell me that or not?”, “What are you saying Minister?”, and “Can you answer that Minister?”.

[16]   The complainant maintained that the lack of fairness to Mr Stowers and Ms Dyson could be seen most clearly when contrasted with the presenter’s conversations with Ms Miller and Mr Fraher. These two interviewees had been asked questions and allowed time to respond, it wrote, without being interrupted repeatedly.

Mr Gourley’s complaint

[17]   Mr Gourley’s comments above in respect of Principle 4 (balance) also applied to his argument that the broadcast was unfair.

Principle 6 (accuracy)

Ms Dyson’s complaint

[18]   Ms Dyson argued that the presenter’s introduction was inaccurate. She said that the Disabled Persons Employment Promotion (Repeal and Related Matters) Act was not about requiring the minimum wage to be paid to disabled people, as that was already the case for disabled New Zealanders in general employment. She wrote:

About two-thirds of those people will not be affected by this legislation because they are not classified as being in work as they are not working in any sense of employment or in an employment relationship. They are doing either what is now called community participation, what we used to call day activities, or some sort of training. So about 1,000 people are categorised as being in what we would call employment. Currently, those 1,000 people, because they are in a sheltered workshop, have no right to any minimum wage, sick leave, holiday pay, or basic employment rights at all, regardless of the quality and quantity of work they do because they have a blanket exemption from receiving any of these. What the Repeal Act will do is ensure that each person who is doing work in a sheltered workshop is individually assessed for a minimum wage exemption, rather than their place of work receiving a blanket exemption for all workers there, regardless of their ability to perform the work.

[19]   Ms Dyson noted that the presenter’s next comment was that “now, as some predicted at the time the law was being debated, many workshops are closing”. She said that the Ministry of Social Development (MSD) had told her that no sheltered workshop – as listed in the orders to the Disabled Persons Employment Promotion Act 1960 and contracted by MSD – had closed as a result of the Pathways to Inclusion policy or the Repeal Act. Some organisations had changed the type of service they provided, she noted, but the organisations themselves and their programmes were still in existence. To say that workshops were closing when they were not was inaccurate, Ms Dyson wrote, and to imply that they were closing because of a requirement to pay the minimum wage to disabled people was also inaccurate, misleading and unfair.

[20]   In respect of the presenter’s comment that “two-thirds of the IHC workshops have already closed and the rest are under review”, Ms Dyson noted that IHC (now called IDEA Services) undertook a review of their vocational services and made the decision to change the services at some of their sites prior to the launch of the Pathways to Inclusion policy in 2001. In the complainant’s view, to link the changes at IDEA Services/IHC to the recent passing of the law, without providing any of the background, was misleading and inaccurate.

[21]   Ms Dyson referred to the presenter’s statement that “other small private providers of employment for the disabled are getting exemptions from the minimum wage requirement thus working around it”. She contended that the presenter had implied that employment providers for the disabled were working around an Act which had yet to come into force. As well as being inaccurate and misleading, she said, this was simply not possible. Sheltered workshops, she explained, had the ability to gain blanket exemptions from paying the minimum wage since the original Disabled Persons Employment Promotion Act 1960, and they were able to continue applying for exemptions for individual workers. This was part of the new Act, she said, not a way to “work around it”.

[22]   Ms Dyson contended that from the presenter’s introduction it was clear that she had an inability to understand, or a lack of interest in understanding, the difference between employment and being in a sheltered workshop. Despite numerous attempts by Sean Stowers to explain the difference, she wrote, the information he was trying to impart was rejected “out of hand” by the presenter. Ms Dyson added that she had explained again to the host that many of the people in the workshops were not being paid, they were on a benefit. The relevance of this was again rejected by the presenter, she said adding:

Being paid a benefit is not the same as being paid for a job. It is a relevant fact. One of the points of the new legislation (which would have been very useful for Radio New Zealand National listeners to have been able to hear) is that it will clarify employment relationships in sheltered workshops and people who are not actually working will be recognised as undertaking either vocational training or community participation.

This is also different from supported employment, where disabled people are provided with assistance, either financial or in the form of support workers or transport or adjusted equipment, to have a job in the open employment market, alongside other employees.

[23]   Ms Dyson maintained that the distinction between a private employer offering work and a service provider offering daytime activities was continually blurred by the host and not understood. When she had been given the opportunity to correct this impression, she said, the presenter had continued to assert that Ms Miller’s son was in private employment rather than with a service provider which was funded largely by the government.

[24]   The complainant then referred to the presenter’s comment “Right, so there’s training, there’s voluntary work and there’s education being provided, but we cannot say how many have been able to get paid jobs, and the benefits that come with that”. She argued that this was an inaccurate and unfair assessment stemming directly from the host’s continued inability to understand the difference between supported employment and being in a sheltered workshop.

[25]   Further, Ms Dyson said, at the beginning of the discussion Mr Stowers had given the number of IHC clients who were now in supported employment (700), and also gave the number of people remaining in IHC workshops (400) and the total number of clients being provided with vocational services (2,800). Ms Dyson contended that she had given the number of people that MSD had supported into employment (approximately 3,000). Despite this, she said, the presenter had continually insisted that Mr Stowers was unable to give figures, and had implied that both she and Mr Stowers were being evasive about the effect that the Repeal Act was having on people who were, or had previously been, in sheltered workshops.

[26]   Looking at guideline 5c to the accuracy standard, Ms Dyson argued that the broadcaster had allowed Ms Miller to present opinion as fact without question on many occasions. For example, she noted the following exchange:

Ms Miller:            I mean, there’s no way they can get jobs – and while I know Mr Stowers
                          says that they do meals on wheels, 80 percent of the people in sheltered
                          workshops that I know aren’t capable of doing…
Presenter:           Sorry, say that again, 80 per cent of those currently that you know, from
                          personal experience in a sheltered workshop, would not be capable of that
                          sort of work?
Ms Miller:            That’s why they’re there. It’s therapeutic activity. It’s their purpose in life.
                         That’s their club. It’s their social activity, you know.

[27]   In Ms Dyson’s view, the above statements by Ms Miller were pure opinion and were not challenged by the presenter. This was even after Mr Stowers had explained that IHC had actually asked people in sheltered workshops whether they wanted to continue as they were, or if they wanted to change. Ms Dyson noted that not one person actually in a sheltered workshop said they wanted to continue unchanged, she said. It was also telling that the programme’s producers did not invite anyone who was currently or previously in a sheltered workshop to participate in the discussion, she added.

DPA (New Zealand) Incorporated’s complaint

[28]   With respect to Principle 6 (accuracy), DPA noted that the standard required broadcasters to be truthful and accurate on points of fact. The presenter, it wrote, had seemed convinced that the facts being given to her by Mr Stowers and Ms Dyson were wrong, or not worth hearing, although the interviewees were in a position to be much better informed than the presenter.

[29]   The complainant noted that when Mr Stowers responded to the presenter’s question by saying that disabled people in sheltered workshops were “not in paid employment”, the presenter had said she was “not really too worried about that”. She then reiterated her belief that the situation being discussed constituted paid employment. DPA contended that after two further attempts by Mr Stowers to provide factual and accurate information, the presenter refused to accept any alteration to her original assertion. DPA wrote:

This is a substantial and wilfully inaccurate presentation of the nature of employment. It is difficult to believe that such an inaccurate representation would be acceptable practice in any other context.

[30]   The complainant maintained that the programme had given inaccurate information about the consequences of the repeal of the Disabled Persons Community Employment Act. Further, it said, the item had reinforced predominant erroneous stereotypes about disabled people and work, and conveyed a false impression that this was solely an issue for people with intellectual impairments.

Mr Gourley’s complaint

[31]   Mr Gourley complained that the presenter claimed that a number of IHC sheltered workshops had closed due to the law change. In fact, he said, the closures pre-dated the law change which did not take effect until 30 November 2007.

[32]   Mr Gourley added that as a former broadcaster, and an advocate for disability rights, he was outraged by the programme.

Principles

[33]   RNZ assessed all three complaints under Principles 4, 5 and 6 of the Radio Code of Broadcasting Practice, which provide:

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.

Principle 5

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

Principle 6

In the preparation and presentation of news and current affairs programmes, broadcasters are required to be truthful and accurate on points of fact.

Broadcaster's Response to the Complainants 

Ms Dyson’s complaint

[34]   RNZ declined to uphold Ms Dyson’s complaints about the item’s introduction. It argued that the thrust of the interview was that, for whatever reason, sheltered workshops had been closing and there were concerns that some disabled people would not be able to find work outside of that environment. To undertake a detailed review of the changes to legislation would not have served the listeners’ understanding of the issue at hand, it said. RNZ contended that it was accurate to say that there was an impending law change, that sheltered workshops had closed and that there was a requirement for disabled people to be paid the minimum wage unless an exemption was obtained.

[35]   Looking at the presenter’s statement “And now, as some predicted at the time the law was being debated, many workshops are closing”, RNZ pointed out that Mr Stowers confirmed in the programme that 86 IHC workshops had closed and that 40 more would also close. For the same reason, the broadcaster declined to uphold the complaint about the statement that “two-thirds of IHC workshops have already closed and the rest are under review”.

[36]   With respect to the complaint that it was inaccurate to state that small providers were “working around” the minimum wage requirement, because the Act was not yet in force, RNZ stated that this was understandable shorthand to describe a complex legislative structural change which was to take effect. All that listeners needed to understand, it wrote, was the possible outcome of those changes. It pointed out that when the Repeal Act came into force, providers would have the choice of either paying the minimum wage for disabled people or seeking an exemption from that requirement. It declined to uphold this part of the complaint.

[37]   Turning to Ms Dyson’s complaint that the presenter promoted an inaccurate argument that disabled people were being deprived of paid employment as a result of the Repeal Act, RNZ stated that the presenter had accepted that Southland Enterprise (where Ms Miller’s son worked) was being funded by the government with the words “…all right” and the interview had then continued.

[38]   RNZ also declined to uphold Ms Dyson’s complaint about the presenter’s comment that “we cannot say how many [disabled people] have been able to get paid jobs, and the benefits that come with that”. It noted that the presenter had been unable to find out from Ms Dyson or Mr Stowers how many disabled people who wanted to work had been able to get jobs. RNZ said it had reviewed the programme and had been unable to locate a statement made on air by Ms Dyson that the number of people supported into employment was approximately 3,000.

[39]   With respect to Ms Miller’s comments being presented as fact, the broadcaster noted that Mr Stowers had made the “sweeping assertion” that nobody in sheltered workshops wanted things to continue as they were. Ms Miller, it said, had put forward a contrary point of view and noted that 80 per cent of people that she knew were incapable of doing Meals on Wheels work. This was a fact grounded in her own observation, it wrote. RNZ stated that there was nothing to suggest that the statement was not true, and it found Principle 6 was not breached in this respect.

[40]   Turning to Principle 5 (fairness), the broadcaster made the same comments in its response to Ms Dyson as it had made to Mr Gourley and DPA (see paragraphs [37] and [38] above). It rejected the assertion that Mr Stowers and Ms Dyson had been treated unfairly.

[41]   In response to Ms Dyson’s complaint that she was speaking on a cellphone and this was not explained to listeners, RNZ said that the programme host did acknowledge at times that the beginnings of Ms Dyson’s responses were not audible by pausing and asking for them to be repeated. It declined to uphold this part of the complaint.

DPA (New Zealand) Incorporated’s complaint

[42]   RNZ stated that whether the presenter’s use of the word “downside” was “inappropriate” was not a matter of broadcasting standards. It contended that the balance and fairness standards were not breached by the presenter saying that she was “not too worried” about Mr Stowers’ comment that sheltered workshop attendees may only have been spending 20 per cent of their week there.

[43]   Looking at Principle 5 (fairness), and the complaint that Ms Dyson and Mr Stowers were “repeatedly interrupted”, RNZ stated that interviewing style was not a matter of broadcasting standards. It made the same comments in its response to DPA as outlined above in paragraph [37].

[44]   Turning to the complaint about the presenter’s comment that she was “not too worried about that”, RNZ said that the presenter was asking a simple question as to the number of disabled seeking and being able to get jobs outside a sheltered workshop, and was failing to get a straightforward answer. The fact that she was “not too worried” about extraneous information, it said, did not cause any inaccuracy.

Mr Gourley’s complaint

[45]   In response to Mr Gourley’s complaint, RNZ disputed that the presenter’s introduction claimed that a number of IHC workshops had closed due to the law change. Following the introduction, it noted, Mr Stowers had said that 68 sheltered workshops had closed since the law change was announced, and he agreed that in due course another 40 would close as well. It declined to uphold this aspect of Mr Gourley’s complaint.

[46]   With respect to the balance complaint about the composition of the panel, RNZ stated that there had been numerous decisions by the Authority confirming that there was nothing wrong with a broadcaster approaching a topic from a particular angle and examining that topic in-depth. On this occasion, it said, the item had examined the possible downside of the law change. The interviewees had been selected for their involvement in running sheltered workshops, not for their experience in being a participant, and Ms Miller had commented primarily on the assessment process her son had been through. RNZ contended that a number of significant viewpoints had been presented, and it declined to uphold this part of the balance complaint.

[47]   RNZ then turned to consider Mr Gourley’s complaint that the presenter had displayed bias in her tone and questioning, and that she was pursuing an agenda. It observed that matters of interviewing style “do not merit the attention of the Radio Code”, and said that it was not unusual for a novice taking part in a national radio programme to be approached in a different style to someone such as a Cabinet Minister. It wrote:

The fact that the programme host was unable to obtain an answer to what on the face of it appeared to be a straightforward question as to the number of disabled seeking and being able to obtain jobs outside of a sheltered workshop, could well have had the audience expecting to hear a robust line of questioning. That is what happened on this occasion.

[48]   RNZ contended that there were times when programme participants were allowed to speak at length as well as times when they were interrupted as the presenter tried to return to the point of the question being asked. It rejected Mr Gourley’s assertion that either Mr Stowers or Ms Dyson was treated unfairly. It declined to uphold the complaint.

Referrals to the Authority

[49]   Dissatisfied with RNZ’s response, all three complainants referred their complaints to the Authority under s.8(1)(a) of the Broadcasting Act 1989.

Ms Dyson’s referral

[50]   Ms Dyson reiterated the points made in her original complaint. She disagreed with RNZ’s argument that the introduction was not inaccurate because the name of the Repeal Act was not specifically mentioned in the first sentence (which referred to “the downside of the move to require the minimum wage to be paid to disabled people”). The second sentence, she observed, referred to the “law change”, and Ms Dyson contended that a listener would not draw any conclusion other than that both sentences were about the same topic and the same law change.

[51]   Further, she noted, there was no mention in the introduction of the need to obtain an exemption as stated in RNZ’s reply. Ms Dyson maintained that the presenter had reasserted elsewhere in the interview that both closures of sheltered workshops and payment of the minimum wage to everyone in them was a consequence of “this law change”.

[52]   Referring to the presenter’s comment that “we cannot say how many have been able to get paid jobs”, Ms Dyson reiterated that Mr Stowers had given figures about the number of IHC clients who were in supported employment, receiving vocational services and remaining in the workshops. She had also stated that the number of people that MSD had supported into employment had trebled, yet the presenter continually insisted that she and Mr Stowers were unable to give figures and were being evasive about the effect that the Repeal Act was having. Ms Dyson commented that:

If the exact numbers were such a concern, Radio New Zealand should have asked for this in advance or followed up with a request for exact numbers. I do not believe it is fair or useful to have two guests’ opinions entirely dismissed for lack of knowing an exact figure they had not been asked for in advance.

DPA’s referral

[53]   DPA repeated its comments about the presenter’s use of the word “downside” in the introduction. It agreed with RNZ’s argument that a topic could be explored from a particular angle, but contended that this still carried a responsibility to convey the significance of other perspectives on the programme.

[54]   DPA maintained that the programme was unfair and unbalanced because of the “repeated interruptions” to Ms Dyson and Mr Stowers. It contended that RNZ’s “careful reading of the transcript” ignored the point that the programme was an audio broadcast. DPA also disagreed that interviewing styles would never be a matter of broadcasting standards, stating that, if that were the case, “interviewees would not have any of the protections or redress against interviewing styles that could be experienced as coercive, intimidating or even abusive”.

[55]   In DPA’s view, RNZ’s statement that a Cabinet Minister can be approached in a different style to a novice “falls down because this was not, in fact, the basis upon which the interviewing style proceeded”. It wrote:

Instead both Sean Stowers (a novice or perhaps inexperienced interviewee) and an experienced Cabinet Minister were treated with a commensurate amount of hostile interviewing style, while another novice whose beliefs aligned better with the interviewer’s preconceptions received markedly different treatment.

Mr Gourley’s referral

[56]   Mr Gourley’s referral reiterated his complaint that the programme’s introduction created a false impression of the relationship between the upcoming law change and the closure of workshops. An uninformed listener, he wrote, could not help but believe that the closure of workshops was due to the passage of the Repeal Act. He noted that the presenter’s subsequent questioning of Mr Stowers had reinforced this, when she said “When you say work in the open labour market, I mean…how many were in…in the 126 sites that were operating until this law change?”.

[57]   Mr Gourley argued that the IHC had been closing workshops in favour of other initiatives for over a decade. He wrote that it was hard to argue that “the mere debate over the proposed law change” could be held exclusively responsible for the closures.

[58]   With respect to his argument about balance in the selection of participants, Mr Gourley agreed that the topic could be approached from a particular perspective. However, he said, in exploring the negative impact on a group of disabled people, some attempt should have been made to ensure that this perspective was present in the discussion.

[59]   Mr Gourley maintained that the presenter had exhibited a bias against the law change. In his view, the tone and style of the presenter revealed a lack of balance and fairness and, accordingly, had ensured that the presentation of the topic and discussion lacked balance.

Broadcaster’s Responses to the Authority

Response to Ms Dyson’s referral

[60]   RNZ noted that, in her original complaint, Ms Dyson said she had stated in the programme that approximately 3,000 people had been supported into employment by MSD. The broadcaster had responded that it could not locate that statement in the broadcast. In her referral to the Authority, it observed, Ms Dyson had omitted this part of her original complaint but had introduced a “new allegation” that if exact numbers were a concern, RNZ should have asked for the figure in advance or followed up with a request for the figure. RNZ submitted that this was a new allegation which could not be raised in the referral process, and it was a significant departure from the original complaint.

[61]   The broadcaster also contended that Ms Dyson’s assertion that it was “telling” that RNZ had not invited anyone who was currently or previously in a sheltered workshop to participate was a new matter that should be ignored by the Authority. If the Authority did accept this part of the referral, RNZ wrote that the selection of programme participants did not amount to a breach of Principle 4. It noted that the programme had legitimately approached the topic from a particular perspective, and contended that comments by Mr Stowers and Ms Dyson were sufficient to alert listeners to the fact that other viewpoints existed.

[62]   RNZ reiterated its view that the programme’s introduction was not unbalanced or inaccurate. The two introductory statements, it said, gave an accurate overview of the effect of the repealing legislation which would come into effect on 30 November 2007.

[63]   Referring to Ms Dyson’s complaint that the presenter had blurred the distinction between a private employer offering work and a service provider offering daytime activities, RNZ observed that her complaint omitted a critical acknowledgement by the presenter that Ms Dyson was correct in what she was saying. There were two instances, it noted, where the presenter had said “all right” to acknowledge that Ms Dyson was correct.

Response to DPA’s referral

[64]   The broadcaster noted DPA’s point that, even where a programme approached a topic from a particular perspective, it was still obliged to convey other significant perspectives. RNZ said that the comments by Mr Stowers and Ms Dyson were sufficient to alert listeners to the fact that other perspectives existed (see paragraph [61]).

[65]   Looking at the complaint that Mr Stowers and Ms Dyson were continually interrupted, RNZ asserted that it had been correct to consider this as a matter of fairness, not balance. It argued that both of these interviewees had been confident participants, in contrast to Ms Miller who was “a little more hesitant”. It submitted that it would be “grossly unfair” to treat all participants in the same manner, and it asserted that each participant on this occasion was treated fairly.

[66]   RNZ described as “disingenuous” DPA’s argument that the presenter’s statements were inaccurate because the Repeal Act would not require the minimum wage to be paid to disabled people. It noted that the Repeal Act meant sheltered workshops were no longer exempt from the requirements of “any enactment affecting or regulating any employment or remuneration for any employment, or affecting or regulating any place of employment”¹. Because this provision had been repealed, it said, employers would now have to seek an exemption for each individual worker, and that exemption would have to be approved annually by the Department of Labour. If this was not in place by 30 November 2007, RNZ wrote, the minimum wage would have to be paid to each disabled worker after that date.

Response to Mr Gourley’s referral

[67]   RNZ maintained that it was a fact that sheltered workshops were closing and that some people had predicted this would happen when the proposed law was being debated. At best, it said, there was debate about the possible causes and effects of sheltered workshop closures, and part of the intent of the programme was to explore those effects on parents and caregivers of disabled people.

[68]   The broadcaster repeated its comments in respect of the fairness complaint, and maintained that the standard was not breached.

Complainant’s Final Comment

[69]   Mr Gourley made a final submission to the Authority in respect of his complaint. He maintained that linking the debate about the proposed legislation with one service provider’s decision to close a number of workshops would have indelibly linked the Repeal Act with the closures. This was despite the fact that the law change had not yet occurred. Mr Gourley submitted that listeners would not have had recourse to a transcript to “check the fine print”, and would have been left with a false impression.

[70]   The complainant also reiterated that the failure to include disabled people on the panel, as the group most affected by the “downside” of the upcoming legislation, breached the balance standard.

Authority's Determination

[71]   The members of the Authority have listened to a recording of the broadcast complained about and have read the correspondence listed in the Appendix.  The Authority determines the complaint without a formal hearing.

Principle 4 (balance)

[72]   Principle 4 requires broadcasters to make reasonable efforts, or give reasonable opportunities, to present significant points of view when controversial issues of public importance are discussed, either in the same programme or in other programmes within the period of current interest.

[73]   On this occasion, the programme discussed the potential effect of the Disabled Persons Employment Promotion (Repeal and Related Matters) Act on people who were currently or previously participating in sheltered workshops. In the Authority’s view, the programme discussed a controversial issue of public importance to which the balance standard applies.

[74]   There are three aspects to the balance complaints made by the complainants. These are:

• Ms Dyson and Mr Stowers were continually interrupted by the presenter, and therefore they did not have an adequate opportunity to present their viewpoints
• the panel should have contained a disabled person or a disability community representative
• the use of the word “downside” in the introduction was designed to influence listeners prior to the discussion

Opportunity to present significant viewpoints

[75]   Having listened to a recording of the interview, the Authority is of the view that there was a clear difference in the presenter’s treatment of Ms Dyson and Mr Stowers and her treatment of the other interviewees. When speaking with Ms Dyson and Mr Stowers, the presenter adopted an aggressive interviewing style and frequently interrupted the interviewees. This was in contrast to the non-confrontational manner in which the presenter interviewed Peter Fraher and Marion Miller.

[76]   In Decision No. 2004-115 the Authority noted that “the choice of interviewing style is a matter of editorial judgement”. However, it did not accept that editorial style would never be a matter of broadcasting standards. The question on this occasion is whether the presenter’s approach led to listeners being deprived of an opportunity to hear Ms Dyson and Mr Stowers’ significant points of view on the issue under discussion.

[77]   At the outset, the Authority considers that the broadcast would have been extremely confusing for listeners. The presenter emphasised the “downside” of the new legislation without any explanation of the current system for disabled people, or giving any potential upside of the changes. Without this context, listeners would have found it difficult to appreciate the arguments being presented by the interviewees.

[78]   In the Authority’s view, and with the benefit of the submissions made by the parties, it is clear that the presenter misunderstood the nature of sheltered workshops, and this led her to talk about them in terms that differed from the panellists’ understanding of those terms. The most important instance of this was where Mr Stowers and Ms Dyson made several attempts to explain the difference between paid employment and the nature of the work being done in sheltered workshops. The presenter did not accept their explanations, and did not appreciate how this fundamental misunderstanding affected their discussion of the issue. An example was the presenter’s repeated attempts to elicit statistics from Mr Stowers and Ms Dyson about how many disabled people “have been able to go into another kind of paid employment”. The interviewees attempted to make the point that people in sheltered workshops were not in “paid employment” but were receiving $5 to $15 a week added on to their benefit. When Mr Stowers and Ms Dyson attempted to explain the current regime, the presenter responded with remarks such as “not really too worried about that” and “that’s irrelevant”. In effect, the presenter and the two interviewees were talking at cross purposes.

[79]   At other times in the interview the confusion between the presenter and the interviewees was resolved, but only just before the presenter introduced a new point. The Authority considers that from the interviewees’ attempts to explain their perspectives and the presenter’s reluctance to listen to their points, listeners would have been unable to extract the relevant information necessary to understand the issues under discussion. 

[80]   In the Authority’s view, the absence of an explanation of the current framework surrounding sheltered workshops, and what disabled people were actually doing in those workshops, made it exceedingly difficult for listeners to understand how the new legislation was going to change the lives of those people. It finds that the presenter did not allow Ms Dyson and Mr Stowers to explain the nature of the work currently being done in sheltered workshops and that, without that information, listeners were deprived of a significant perspective on the controversial issue of how the new legislation would affect people in sheltered workshops.

[81]   Accordingly, the Authority finds that Principle 4 was breached in this respect.

Whether the panel should have contained a disabled person or a disability community representative

[82]   In the Authority’s view, it was not necessary for the broadcaster to include a disabled person or a disability community representative on the panel in order to meet the requirement for balance in Principle 4.

[83]   In paragraphs [75] to [80] above the Authority has determined that the broadcaster did not give reasonable opportunities for significant viewpoints to be presented on the controversial issue under discussion. However, the Authority is of the view that this important information about the current framework surrounding sheltered workshops did not need to be presented by a disabled person. Ms Dyson, Mr Stowers or any other informed person could have provided listeners with information about the present system if they had been given the opportunity to do so. For this reason, the Authority finds that the broadcaster was not required to include a disabled person on the panel in order to meet the requirement for balance. Accordingly, it declines to uphold this part of the balance complaint.

The use of the word “downside” in the introduction

[84]   Ms Dyson and DPA also complained that the use of the word “downside” in the introduction was designed to influence listeners prior to the discussion that the law change was both responsible for sheltered workshops closing, and was a “bad thing”.

[85]   In the Authority’s view, the presenter’s use of a particular word on this occasion does not, of itself, raise an issue under the balance standard. Principle 4 requires a broadcaster to give reasonable opportunities for the presentation of significant viewpoints; even if the word “downside” had cast a particular light on the discussion, a breach of the standard would only arise if the broadcaster failed to meet that requirement.

[86]   Accordingly, the Authority finds that the use of the word “downside” did not amount to a breach of Principle 4.

Principle 5 (fairness)

[87]   All three complainants argued that Ms Dyson and Mr Stowers were treated unfairly because of the presenter’s interruptions, and their arguments were identical to those presented in respect of the balance complaints. In this respect, the Authority is of the view that the complainants’ concerns have already been addressed in its consideration of Principle 4 above. Accordingly, it subsumes this part of the fairness complaint into its consideration of the balance standard.

[88]   Ms Dyson also complained that the broadcaster treated her unfairly because she participated in the interview on her cellphone at the side of a busy road, and the presenter did not acknowledge the technical difficulties Ms Dyson experienced of hearing the interviewer and the interviewees, and trying to be heard. Ms Dyson stated that listeners had been given the clear impression that she was not responding to the presenter’s questions either because she did not have the answers, or was refusing to answer.

[89]   In the Authority’s view, the broadcaster did not treat Ms Dyson unfairly in this respect. First, the Authority cannot identify any points during the interview in which it appeared that Ms Dyson was refusing or failing to answer a question. Second, it notes that the presenter may not have been aware that Ms Dyson was having difficulty hearing, and it was open to Ms Dyson to inform the presenter and listeners of this fact. For these reasons, the Authority finds that Ms Dyson was not treated unfairly and it declines to uphold this part of the complaint.

Principle 6 (accuracy)

[90]   The complainants have identified several alleged inaccuracies in the programme, all of which have been outlined in the summary of correspondence. The Authority now considers each allegation in turn.

Presenter’s statement “the downside of the move to require the minimum wage to be paid to disabled people”

[91]   Ms Dyson argued that the Disabled Persons Employment Promotion (Repeal and Related Matters) Act was not about requiring the minimum wage to be paid to disabled people, and therefore the above statement was inaccurate. She wrote:

What the Repeal Act will do is ensure that each person who is doing work in a sheltered workshop is individually assessed for a minimum wage exemption, rather than their place of work receiving a blanket exemption for all workers there, regardless of their ability to perform the work.

[92]   The Authority notes that the new legislation does require the minimum wage to be paid to disabled people unless an exemption is obtained. While the above statement did not include an explanation of the exemption process, the Authority finds that it was not inaccurate, and it was acceptable in the context of an introductory statement. Further, it was made clear by the end of the item that disabled people and their employers could obtain a minimum wage exemption. Accordingly the Authority considers that the statement did not breach Principle 6.

Presenter’s comments that “now, as some predicted at the time the law was being debated, many workshops are closing” and“two-thirds of the IHC workshops have already closed and the rest are under review”

[93]   The Authority notes the following exchange in the programme between the presenter and Mr Stowers:

Presenter:            Let’s begin with Sean Stowers if we may, of the IHC, as I said, responsible
                           for the Northern region. Nationally, how many of your workshops have
                           closed since this law change was announced?

Stowers:              Well Kathryn, we have 300 sites across the country, of those about 126,
                           five years ago, you could term as being sheltered workshops. We currently
                           have 40 of those sites left, of which we’ve got about 400 people who are
                           doing some work for reward within them.

Presenter:            So 86 have closed, basically?

Stowers:              That’s correct.

Presenter:            40 left, but under review, and what does under review mean?

[94]   In the Authority’s view, the information given by Mr Stowers in the above exchange supports the presenter’s statements that “many workshops are closing” and “two-thirds of the IHC workshops have already closed and the rest are under review”. Ms Dyson argued that the closure of workshops was made independent of the announcement of the new legislation. However, Mr Stowers (the representative of IHC) did not make any such distinction. Based on Mr Stowers’ statements and the context in which his figures were given, the Authority is not persuaded that the presenter’s statements were inaccurate. It declines to uphold this part of the Principle 6 complaint.

Presenter’s statement that “other small private providers of employment for the disabled are getting exemptions from the minimum wage requirement thus working around it”

[95]   Ms Dyson contended that the presenter had implied that employment providers for the disabled were working around an Act which had yet to come into force, and that this was inaccurate and misleading. However, the Authority agrees with RNZ that the above statement was shorthand to describe a complex legislative structural change which was to take effect. Further, it was clear from Mr Fraher’s comments that employers were already assessing their options and conducting assessments prior to the implementation of the new legislation.

[96]   The Authority is of the view that the above statement was not inaccurate, and therefore it finds that Principle 6 was not breached in this respect.

Presenter’s unwillingness to accept the difference between employment and being in a sheltered workshop, and her comment that “we cannot say how many [disabled people] have been able to get paid jobs, and the benefits that come with that”

[97]   In the Authority’s view, Ms Dyson’s concerns about the presenter’s unwillingness to accept the difference between employment and being in a sheltered workshop have already been addressed in its consideration of the balance standard above. The Authority has found that this misunderstanding resulted in a breach of Principle 4 (balance) because listeners were deprived of a significant viewpoint on how the new legislation would alter the current situation for people in sheltered workshops. Because this point has already been addressed, the Authority subsumes these parts of the complaint into its consideration of Principle 4.

The presenter continued to assert that Ms Miller’s son was in private employment rather than with a service provider which was funded largely by the government

[98]   The Authority notes that this part of Ms Dyson’s complaint refers to the following exchange between Ms Dyson and the presenter, which refers to Ms Miller’s son:

Ms Dyson:            The people who are working in the sheltered workshops, which are being
                            funded by the Government to provide that support for disabled people,
                            have one assessment so they are exempt as an individual from the
                            requirements of the minimum wage.

Presenter:            He is in private employment, however, and he…

Ms Dyson:            No, no, actually he is not in private employment.

Presenter:            All right, he is being employed by a private provider.

Ms Dyson:            Kathryn, please, he is not. He is in a sheltered workshop which is being
                            funded by the Government and Southland Enterprises…

Presenter:            All right.

Ms Dyson:            …provides activities for him to do during the day and, actually, what they
                            are providing for him is work, so he is being paid to do that work [and]
                            because he’s not able to do it at the level that others may be able to,
                            he has one assessment which gives him an exemption from minimum
                            wage requirement.                           

[99]   Having listened to the above, the Authority considers that the presenter’s “All right” operated as a clear acceptance of the Minister’s point. It was obvious that the presenter accepted that Ms Miller’s son was not in private employment, and she did not argue this point any further. Accordingly the Authority declines to uphold this part of the accuracy complaint.

Presentation of Ms Miller’s comments as statements of fact

[100]   Looking at guideline 6c to the accuracy standard, Ms Dyson argued that the broadcaster had allowed Ms Miller to present opinion as fact without question on many occasions. For example, she noted the following exchange:

Ms Miller:            I mean, there’s no way they can get jobs – and while I know Mr Stowers
                          says that they do meals on wheels, 80 percent of the people in sheltered
                          workshops that I know aren’t capable of doing…

Presenter:          Sorry, say that again, 80 per cent of those currently that you know, from
                          personal experience in a sheltered workshop, would not be capable of that
                          sort of work?

Ms Miller:            That’s why they’re there. It’s therapeutic activity. It’s their purpose in life.
                          That’s their club. It’s their social activity, you know.

[101]   In the Authority’s view, Ms Miller’s comments were clearly distinguishable as her own opinion. She did not present any of her statements as authoritative statements of fact, and the Authority considers that this would have been obvious to listeners. Accordingly, it finds that the accuracy standard did not apply to Ms Miller’s statements, and therefore it declines to uphold this part of the complaint.

For the above reasons the Authority upholds the complaint that the broadcast of an item on Nine to Noon by Radio New Zealand Ltd on 25 May 2007 breached Principle 4 of the Radio Code of Broadcasting Practice.

[102]   Having upheld a complaint, the Authority may make orders under sections 13 and 16 of the Broadcasting Act 1989. It invited submissions on orders from the parties.

[103]   Ms Dyson submitted that the Authority should order a statement to be broadcast on Nine to Noon summarising the upheld aspects of its decision. DPA and Mr Gourley submitted that the Authority should order an “on-air apology” under section 13(1)(a) of the Act.

[104]   RNZ submitted that the Authority should not make any orders on this occasion.

[105]   The Authority considers it appropriate to order RNZ to broadcast a statement summarising the upheld aspect of the Authority’s decision. The Authority declines to order an “on-air apology” as requested by two of the complainants; apologies are ordered rarely and only in exceptional circumstances, usually where an individual has been personally affected by a broadcast. No such circumstances exist on this occasion.

Bill of Rights

[106]   The Authority records that it has given full weight to the provisions of the New Zealand Bill of Rights Act 1990 and taken into account all the circumstances of the complaint in reaching its determination and in ordering the broadcast of a statement. The  Authority considers that its exercise of powers on this occasion is consistent with the New Zealand Bill of Rights Act’s requirement that limits on freedom of expression must be prescribed by law, be reasonable, and be demonstrably justifiable in a free and democratic society.

[107]   In particular, in relation to its finding that listeners were deprived of a significant perspective on a controversial issue as a result of the host's interviewing style, the Authority notes that nothing in its decision should inhibit robust interrogation of public figures. Provided such figures are given adequate opportunity to present their perspectives, freedom of speech as guaranteed by the Bill of Rights Act does not protect them from strong and pointed contesting of the positions they advance.

Order

Pursuant to section 13(1)(a) of the Broadcasting Act 1989, the Authority orders Radio New Zealand Ltd to broadcast, within one month of the date of this decision, a statement approved by the Authority containing a comprehensive summary of the upheld aspect of its decision. The statement shall be broadcast on a Friday morning during the Nine to Noon programme on a date to be approved by the Authority.

The Authority draws the broadcaster’s attention to the requirement in section 13(1)(b) of the Act for the broadcaster to give notice to the Authority of the manner in which the above order has been complied with.

Signed for and on behalf of the Authority

Joanne Morris
Chair
21 April 2008

Appendix

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

1.           Ruth Dyson’s formal complaint – 22 June 2007
2.          RNZ’s decision on the formal complaint – 6 July 2007
3.          Ms Dyson’s referral to the Authority – 2 August 2007
4.          RNZ’s response to the Authority – 5 October 2007
5.          Ms Dyson’s submissions on orders – 27 February 2008
6.          RNZ’s submissions on orders – 3 March 2008

1.           DPA (New Zealand) Incorporated’s formal complaint – 7 June 2007
2.          RNZ’s decision on the formal complaint – 6 July 2007
3.          DPA’s referral to the Authority – 2 August 2007
4.          RNZ’s response to the Authority – 5 October 2007
5.          DPA’s submissions on orders – 26 February 2008
6.          RNZ’s submissions on orders – 3 March 2008

1.           Mike Gourley’s formal complaint – 8 June 2007
2.          RNZ’s decision on the formal complaint – 6 July 2007
3.          Mr Gourley’s referral to the Authority – 28 July 2007
4.          RNZ’s response to the Authority – 5 October 2007
5.          Mr Gourley’s final comment – 23 October 2007
6.          Mr Gourley’s submissions on orders – 27 February 2008
7.          RNZ’s submissions on orders – 3 March 2008

¹Section 4, Disabled Persons Employment Promotion Act 1960