Ellis and UMA Broadcasting Ltd - 2003-032
- P Cartwright (Chair)
- J H McGregor
- Tapu Misa
- R Bryant
- Colin Ellis
BroadcasterUMA Broadcasting Ltd
Radio Waatea – Liberation Talkback – unbalanced – contained unsubstantiated allegations – anti-Pakeha comments – promoted racial discord
Principle 4 – reasonable opportunities to present views – no evidence of lack of balance – no uphold
Principle 7 Guideline 7a – threshold not reached – no uphold
This headnote does not form part of the decision
 Liberation Talkback is a talkback programme broadcast weekly on Radio Waatea. Liberation Talkback was broadcast on Radio Waatea between 8.00pm and 11.00pm on 18 November 2002.
 Colin Ellis complained to Radio Waatea, a radio station broadcast by UMA Broadcasting Ltd, the broadcaster, that the item was unbalanced, "anti-Pakeha", contained unsubstantiated allegations and promoted racial discord.
 When the broadcaster failed to respond to his formal complaint, Mr Ellis referred it to the Broadcasting Standards Authority under s.8(1)(b) of the Broadcasting Act 1989.
 In its response to the Authority, Radio Waatea disagreed with Mr Ellis’ views concerning the programme. It argued that the host’s comments amounted to the expression of an opinion and, while contentious, his views were not racist.
For the reasons below, the Authority declines to uphold the complaint.
 The members of the Authority have listened to a tape of the item complained about and have read the correspondence which is listed in the Appendix. The Authority determines the complaint without a formal hearing.
 Liberation Talkback was broadcast on Radio Waatea between 8.00pm and 11.00pm on 18 November 2002. Liberation Talkback is a talkback programme broadcast weekly on Radio Waatea.
 Colin Ellis complained to Radio Waatea, a radio station broadcast by UMA Broadcasting Ltd, the broadcaster, about the "general tenor" of the talkback programme. In his view, there was a "continual tirade of anti-Pakeha comments and observations which were both untrue and unsubstantiated".
 Mr Ellis continued:
Every time a Pakeha person, or Pakeha in general, were referred to, it was in derogatory terms. In particular I object to the words ‘the Police in this country have been murdering our young Maori for years’. The item did nothing to offer any balanced argument or discussion, and could be highly inflammatory, as it appeared to be solely aimed at promoting, and inciting, racial discord.
The Referral to the Broadcasting Standards Authority
 As Mr Ellis failed to receive a response to his formal complaint from Radio Waatea within 20 working days, he referred his complaint to the Authority.
The Broadcaster’s Response to the Authority
 Radio Waatea disagreed that there was a "tirade of anti-Pakeha comments". In its view, the host was "attacking institutions such as TVNZ, and their apparent lack of balanced reporting on ‘Maaori’ issues". It stated that the host was more likely to "attack the system and his perceived injustices against Maaori", and Pakeha were rarely mentioned in his criticisms. The broadcaster maintained that while the host’s views maybe considered contentious, they were not racist.
 In response to the host’s comment "Police in this country have been murdering our young Maori for years…", Radio Waatea argued that it was the host’s opinion, which was "put up for discussion and debate". It also noted the disclaimer that is broadcast before the programme, which stated that the views expressed on the programme are those of the host, and did not represent the station management’s view.
 Radio Waatea acknowledged that some "listeners would consider Mr Jackson [the host]’s views as extreme", but that he always allowed listeners to challenge his views and invited them to express theirs. In Radio Waatea’s view, the host was extremely patient and courteous with listeners. In conclusion it wrote:
Radio Waatea does not agree with Mr Ellis’ claims and can see no reason to either reprimand Mr Jackson or apologise to listeners.
The Complainant’s Final Comment
 Mr Ellis reiterated his concerns regarding the programme. In his view, Radio Waatea had not denied the substance of his complaint, but had chosen to "deflect" his concerns by raising the issue of his qualifications. Mr Ellis concluded:
I felt that the item was deliberately trying to create discord through a series of untrue and anti Pakeha statements.
The Authority’s Determination
 The Authority observes that neither the complainant nor the broadcaster nominated any specific radio broadcasting standards against which to assess this complaint. The Authority considers that Principles 4 and 7 of the Radio Code of Broadcasting Practice are the standards relevant to this complaint. Those Principles and relevant Guidelines read:
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.
4a Broadcasters will respect the rights of individuals to express their own opinions.
4b Broadcasters may have regard, when ensuring that programmes comply with Principle 4, to the following matters:
(i) An appropriate introduction to the programme; and
(ii) Any reasonable on-air opportunity for listeners to ask questions or present rebuttal within the period of current interest. Broadcasters may have regard to the views expressed by other broadcasters or in the media which listeners could reasonably be expected to be aware of.
In programmes and their presentation, broadcasters are required to be socially responsible.
7a Broadcasters will not portray people in a manner which encourages denigration of or discrimination against any section of the community on account of gender, race, age, disability, occupational status, sexual orientation; or as the consequence of legitimate expression of religious, cultural or political beliefs. This requirement does not extend to prevent the broadcast of material which is:
i) factual; or
ii) a genuine expression of serious comment, analysis or opinion; or
iii) by way of legitimate humour or satire.
 The Authority expresses its concern that Radio Waatea failed to respond to Mr Ellis’ formal complaint. Section 5(a) of the Broadcasting Act requires broadcasters to establish a proper procedure to deal with formal complaints, and it is the broadcaster’s responsibility under the legislation to ensure that an appropriate process is established and complied with. It is also the broadcaster’s responsibility, if the complainant does not nominate them, to list the broadcasting standards under which it has assessed a complaint.
 Principle 4 requires broadcasters 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.
 In the Authority’s view, a number of issues were discussed as contemplated by the standard, which included the Stephen Wallace case, Pakeha involvement in Maori restorative justice, Maori burial issues and media bias. Liberation Talkback is a talkback programme, a format that encourages participation by telephone from people with different views. The Authority considers that the talkback format gives reasonable opportunity for the presentation of significant points of view on the issues under discussion.
 The Authority considers that Principle 4 was not transgressed as there were reasonable on-air opportunities given to listeners to present alternative points of view on the issues being discussed over a three hour period. The Authority notes that the host regularly invited listeners during the course of the programme to phone in and contribute to the programme. Accordingly, the Authority declines to uphold this aspect of the complaint.
 In response to Mr Ellis’ concerns about the "general tenor" of the programme, the Authority notes that the programme at issue was talkback, which it has noted previously is a robust and provocative forum. It accepts that it is an opinionated environment, in which callers and the host express strong opinions, and they often put their views forcibly.
 Mr Ellis contended that the programme was anti-Pakeha and promoted racial discord. The Authority has noted previously that a high threshold applies before a broadcast contravenes Guideline 7a – the portrayal has to be such that it encourages denigration of, or discrimination against, a section of the community. In the Authority’s view, the broadcast fell short of such encouragement and, therefore, the threshold was not reached. In its opinion, the programme was underlaid with expressions of grievance by reference to such issues as racial media bias and race related abuse. However, the Authority considers that, even if the host’s comments did amount to a racial slur, they constituted his genuinely held opinion. Accordingly, the Authority concludes that Principle 7 was not contravened.
 The Authority wishes to address a note of caution to the disclaimer referred to by the broadcaster. The disclaimer was broadcast before the programme, and stated that the views expressed on the programme were those of the hosts, and did not represent the station management’s views. The Authority points out that broadcasters can not contract out of the codes of broadcasting practice. While a disclaimer may be a relevant contextual factor, it does not exempt a broadcaster from its responsibilities to observe broadcasting standards.
 The Authority observes that to find a breach of broadcasting standards on this occasion would be to apply the Broadcasting Act 1989 in such a way as to limit freedom of expression in a manner which is not reasonable or demonstrably justifiable in a free and democratic society (s.5 of the New Zealand Bill of Rights Act 1990). As required by s.6 of the New Zealand Bill of Rights Act, the Authority adopts an interpretation of the relevant standards and applies them in a manner which it considers is consistent with and gives full weight to the provisions of the New Zealand Bill of Rights Act.
For the above reasons, the Authority declines to uphold the complaint.
Signed for and on behalf of the Authority
15 April 2003
The following correspondence was received and considered by the Authority when it determined this complaint:
- Colin Ellis’ Complaint to Radio Waatea – 28 November 2002
- Mr Ellis’ Referral to the Broadcasting Standards Authority – 13 January 2003
- Radio Waatea’s Response to the Authority – 23 January 2003
- Mr Ellis’ Final Comment – 10 February 2003