BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under s.8(1)(b) of the Broadcasting Act 1989
Complaints about two broadcasts on Radio Pacific (Mark Bennett talkback) – critical comments by host about Premier House function for actor Sir Ian McKellen – both broadcasts allegedly discriminatory – second broadcast allegedly unbalanced

Findings
Principle 7, Guideline 7a (discrimination) – comments did not encourage discrimination against homosexuals – not upheld

Principle 4 (balance) – no controversial issue of public importance discussed in second broadcast – not upheld Broadcasting Act, s.5(a) – proper procedure for dealing with complaints not followed

This headnote does not form part of the decision.

Broadcast

[1] On 2 December 2003 at about 3.30pm, Radio Pacific talkback host Mark Bennett spoke critically about a reception for actor Sir Ian McKellen, which had been held at Premier House. During the broadcast, Mr Bennett suggested that the function had been taxpayer funded and that entry had been restricted to homosexual men and women.

[2] After receiving correspondence from the complainant about those comments, on 5 December 2004 at about 3.15pm Mr Bennett again commented about the reception. He reiterated his claims that the event had been taxpayer funded, stating his view that the $10 per head admission charge would have fallen substantially short of meeting the cost of the function. He repeated his statement that the function was only open to. At the conclusion of this broadcast, he stated:

Poor old New Zealand taxpayer, difficult to get a break in this day and age isn’t it? If you don’t happen to be Algerian, if you’re not a terrorist, if you’re not a petty criminal and you’re not gay, it’s hard to get an even break in this country.

Complaint

[3] GAP – The Business and Professionals Association Inc complained to The RadioWorks Ltd, the broadcaster. GAP said that the comments encouraged resentment and prejudice towards the gays and lesbians by misrepresenting facts about the reception. GAP maintained that Mr Bennett had wrongly said that the reception was taxpayer funded and that it had excluded heterosexuals.

[4] GAP also considered that the 5 December broadcast was unbalanced, as Mr Bennett had failed to correct the initial broadcast and had knowingly repeated incorrect statements.

Principles

[5] GAP considered that both broadcasts breached Principle 7 (Guideline 7a) of the Radio Code of Broadcasting Practice, and that the second broadcast breached Principle 4 of the Radio Code. The relevant principles and guidelines read:

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.

Guidelines

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.

Principle 7

In programmes and their presentation, broadcasters are required to be socially responsible.

Guideline

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.

Referral to the Authority

[6] When GAP did not receive a response from the broadcaster within 20 working days, it referred the complaints to the Authority under s.8(1)(b) of the Act.

Broadcaster's Response to the Authority

[7] The RadioWorks’ legal counsel responded directly to the Authority. In the response, the broadcaster admitted:

Due to a combination of oversight and inadvertence the GAP complaint was never investigated [by Radio Pacific] and a tape of the relevant broadcasts not preserved.

[8] The broadcaster accepted:

…unreservedly that it has not met the procedural requirements of the Act in its investigation of the complaint and that it has no “history of exemplary complaints investigation” to point to in mitigation of its lapse on this occasion.

The response continued:

[Radio Pacific] says that it has made real and consistent efforts to meet the requirements put in place to meet earlier criticisms of this nature and it assures the Authority that it is most concerned that this issue has arisen once again. The only point it can make in mitigation is that the issue is now no longer a “systemic” failure but was in this case a human failure by [Radio Pacific’s station manager]. [Radio Pacific’s station manager] accepts that he did not act in the manner required of him by [Radio Pacific] in relation to the processing of this complaint. [Radio Pacific’s station manager] has been warned that a repeat of this sort of carelessness will have serious employment consequences for him.

[9] In relation to the substance of the complaints, the broadcaster did not consider that the complaints should be upheld. In relation to Principle 4 (balance), it submitted that the reception was not a controversial issue of public importance. Accordingly, it did not consider that Principle 4 was relevant. As to Principle 7, it noted:

There is no doubt Mr Bennett regularly employs that standard talkback tactic of being deliberately provocative in order to generate a response from listeners. The Authority has recognised on numerous occasions the robust and spontaneous nature of talkback radio. We cannot now be certain exactly what Mr Bennett did say or how he said it but there is nothing in the formal complaint from GAP that suggests he employed anything in the broadcasts that might be close to or the equivalent of “hate speech” which the Authority has identified as being a breach of Principle 7 of the Radio Code.

[10] The broadcaster apologised to GAP and the Authority for its lapse in complaints investigation and advised that it had:

• taken steps to remind [Radio Pacific’s station manager] most forcefully of his responsibility to carry out his duties in relation to the processing of complaints
• set up a new data entry system for the recording of complaints processes to ensure that another complaint cannot be lost due to inadvertence.

[11] In relation to Mr Bennett, the broadcaster advised:

[Radio Pacific] is conscious that this is not the first occasion on which the Authority has had to consider Mr Bennett’s comments critical of members of the homosexual community. [Radio Pacific] has counselled Mr Bennett to ensure he is sensitive to the need to be appropriately provocative in an even-handed way in relation to heterosexual and homosexual issues of public interest or importance.

Complainant’s Final Comment

[12] In its final comment, GAP maintained:

• Mr Bennett still appeared to be defending his statements by knowingly repeating the original factual errors.
• Mr Bennett had used the reception:
  
  

       to create a (false) impression that the queer community were receiving preferential treatment
       at the expense of the taxpayer, while knowing this was not correct… The fact is that
       broadcasts like this contribute to a general climate that can increase hostility toward the
       queer community.

[13] GAP also attached transcripts which it had made of the broadcasts, and which the broadcaster subsequently accepted were accurate.

Authority's Determination

[14] The members of the Authority have read the correspondence listed in the Appendix, including transcripts of the broadcasts which were provided by the complainant. The Authority determines the complaints without a formal hearing.

Broadcaster’s complaints procedure

[15] The Authority deals first with the procedural matters raised by this complaint.

[16] Under the Broadcasting Act 1989, broadcasters are responsible for dealing with complaints relating to broadcasts, and for establishing proper procedures for investigating complaints. The Act requires broadcasters to respond to complaints within 20 working days after receiving the complaint.

[17] The broadcaster has admitted that it has not complied with its responsibilities to assess complaints under the Act, and has advised the Authority of the steps it has taken to ensure this does not recur.

[18] The Authority notes the broadcaster’s admission and subsequent efforts in relation to its unsatisfactory process. While this mitigates the failure, the Authority emphasises the statutory obligations of the broadcaster:

• to receive and consider formal complaints
• to have in place a proper procedure for doing so
• to comply with the Radio Code of Broadcasting Practice.

[19] As to the broadcaster’s failure to supply tapes of the broadcasts complained about, the Authority notes that the broadcaster has admitted its error and advised of improvements. The Authority also notes that the broadcaster’s history in relation to tape retention is, by its own admission, less than exemplary. The Authority has recorded its concern in earlier decisions about the failure of some stations operated by the broadcaster to provide it with tapes. The Authority has previously indicated to the Radio Broadcasters’ Association that the continuing failure by broadcasters to provide tapes may lead to the promulgation of rules under s.30 of the Broadcasting Act relating to the retention of tapes¹.The Authority stresses to the broadcaster that this option remains open to the Authority in future.

Standards

[20] Dealing first with Principle 7 (discrimination), the Authority’s task is to determine whether the broadcasts encouraged denigration of, or discrimination against, homosexual men and women. In its previous decisions, the Authority has required that a high threshold must be crossed before a broadcast breaches this principle. The threshold must be high to protect the right to freedom of expression enshrined in the New Zealand Bill of Rights Act 1990. On this occasion, the comments complained about were made in the robust environment of talkback radio. While the Authority considers that the criticisms made by Mr Bennett were bigoted, inflammatory and inaccurate, they did not breach Principle 7.

[21] As to Principle 4 (balance), the Authority does not consider that the 5 December broadcast discussed a “controversial issue of public importance”. Accordingly, the principle has no application to the broadcast, and the Authority must conclude that it was not breached.

For the above reasons the Authority does not uphold the complaints.

Signed for and on behalf of the Authority

Joanne Morris
Chair
17 June 2004

Appendix

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

1. GAP’s Formal Complaint to The RadioWorks Ltd – 15 December 2003
2. GAP’s Referral to the Authority – 16 March 2004
3. The RadioWorks’ Response to the Authority – 26 April 2004
4. GAP’s Final Comment – 4 May 2004

¹Section 30 of the Broadcasting Act 1989 empowers the Authority to make rules about the retention by broadcasters of recordings of programmes broadcast by them: s.30(1). Such rules may apply to all broadcasters or to specified types or classes of broadcasters: s.30(2). If a broadcaster does not comply with s.30 rules, section 30(4) provides that the broadcaster commits an offence and is liable on summary conviction to a fine not exceeding $5000.