BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

---

Summary

A discussion about "green" politics on Morning Report on 17 May 1996 included representatives from the green section of the Alliance Party and from the Progressive Greens. The Labour Party's release of its environmental policy was considered on Checkpoint on 9 July 1996 when representatives of the Labour Party, the Alliance, and the Progressive Greens were interviewed. Morning Report is broadcast on National Radio between 6.00–9.00am each weekday and Checkpoint between 5.00–6.00pm.

Dr Grueber of the Green Society complained to Radio New Zealand Ltd, the broadcaster, that each broadcast breached the broadcasting standards in that each omitted the significant views of the Green Society.

Explaining that significance during an election campaign could in part be assessed by the extent of public support a party enjoyed as measured by the opinion polls, RNZ said that the Green Society was not "significant" in terms of the broadcasting standards. It declined to uphold the complaints.

Dissatisfied with RNZ's decision, Dr Grueber on the Society's behalf referred the complaints to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.

For the reasons below, the Authority declines to uphold the complaints.

Decision

The members of the Authority have listened to a tape of each of the items complained about and have read the correspondence (summarised in the Appendix). In this instance, the Authority determines the complaints without a formal hearing.

Aspects of "green" politics were discussed on Morning Report on 17 May 1996, and on Checkpoint on 9 July. The former discussion included interviews with representatives of the Alliance and Progressive Greens. They were also represented on the 9 July item which, in addition, included a spokesperson from the Labour Party.

Arguing that the Green Society considered itself to be the only "green" party contesting the forthcoming election, Dr Grueber of the Society complained that each broadcast was unbalanced in that it omitted the Society's view on the matters under discussion.

RNZ assessed the complaints under s.4(1)(d) of the Broadcasting Act 1989 as that standard was nominated by the complaint. It requires broadcasters to maintain standards consistent with:

(d) 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.

Pointing out that significance and news value were the criteria used in deciding whether to report an item, RNZ noted that the items were broadcast during the election campaign, and that the Green Society had not yet featured in the opinion polls as a political force. RNZ also observed that with the increase in the number of political parties at the first MMP election, there were real limitations as to the amount of coverage which could be given to each political party. Arguing that the Green Society's views were not significant given the applicable criteria, RNZ declined to uphold the complaints.

When he referred the Society's complaint to the Authority, Dr Grueber contended that because the Green Society, unlike the Progressive Greens, was not aligned with any other political party, its views should be reported. Secondly, he objected to RNZ's suggestion that support of about 5% of the voters was required before a party became "significant" in terms of the broadcasting standards.

The Authority sought RNZ's comments to the referral to ensure that it had an opportunity to respond to the matters raised. The Authority has an agreement with the major broadcasters that a response will be sent within 20 working days, or a request for an extension will be made.

RNZ's comments on the Green Society's referral were sought on 11 October 1996. Its reply is dated 18 February 1997. It contained an apology and reported that the delay resulted from pressure of work. The Authority records its considerable dissatisfaction with the delay. It is aware that the complaints process can be time-consuming, but in order for the process to remain relevant to complainants, it repeats a request made on previous occasions for broadcasters to comply conscientiously with the time-limits.

When RNZ's response was received, it noted that the Green Society had received 0.05% of the election votes and 0.12% of the party votes at the election. It also referred to Decision Nos: 1996-161 and 1996-162, dated 21.11.96, in which the Authority declined to uphold complaints from the New Zealand Conservative Party when it complained about the small coverage it had received on TVNZ when compared with some of the other parties. RNZ said that it applied similar criteria to TVNZ in evaluating news value principles and argued that, for similar reasons, the Green Society's complaint should not be upheld.

In addition RNZ reported that it had used an ongoing internal research process which examined the coverage accorded to each of the 30 political parties at election time. The unpublished research process, it argued, ensured a fair coverage by RNZ to the various parties. On the Green Society's behalf, Dr Grueber sought the information contained in this research as to the number of times that the Green Society, or the Green Party of Aotearoa New Zealand, or the Progressive Greens, had been referred to by RNZ.

When RNZ declined to make its review documents available on the grounds of commercial sensitivity, Dr Grueber asked the Ombudsman's Office on 26 June 1997 to review RNZ's Official Information Act decision. In its ruling dated 16 September 1997, the Ombudsman declined to investigate the complaint as there appeared to be an alternative remedy. He pointed out that the Broadcasting Standards Authority was entitled to use a section of the Commissions of Inquiry Act 1908 to order a broadcaster to place documentation before it, and then to decide whether that information should be made available to other parties and, if so, on what conditions.

In view of the Ombudsman's opinion, the Authority released a decision (No: 1997-183/184, dated 18.12.97) which contained the following order:

Pursuant to s.12 of the Broadcasting Act 1989 and section 4C of the Commissions of Inquiry Act 1908, the Authority orders Radio New Zealand Ltd to make available to it the records and documents referred to in the letter of 18 February 1997 to the Authority.

In complying with this Order, RNZ supplied a file of loose-leaf monitoring forms completed regularly by programme editors and producers, and some monitoring digests circulated on a confidential basis to editorial executives. RNZ pointed out that this was the material referred to in its 18 February letter to the Authority. RNZ also submitted that the material should not be released to the complainant, first, on commercial confidentiality grounds to prevent other organisations adopting similar processes, and, secondly, because the release to political parties would enable them to use it to develop complaints based on the monitoring process, rather than on the broadcasting standards of balance and fairness.

Having examined the material, the Authority wrote to Dr Grueber of the Green Society (5 February 1998) and the letter in full stated:

In accordance with the Authority's decision released in December last year (Nos: 1997-183 and 1997-184), RNZ made available to the Authority the records and documents referred to in its letter of 18 February 1997.

Having inspected these documents, the Authority is satisfied that the material substantiates the claims made, and that it is clear from this that RNZ did not take an arbitrary approach to the complaint.

The Authority is also satisfied that the material could be regarded as commercially sensitive, and certainly that is the position which RNZ adheres to. The Authority is not persuaded that there is a compelling public interest reason for the release of the information. Accordingly, it determines that the documents should not be made available to the complainant.

The Authority now expects the Society's final comment to enable it to determine the complaint. In view of the length of time since the broadcast, please let the Authority have this by Tuesday 17 February.

In his response on the Society's behalf (11 February 1998), Dr Grueber questioned whether a "tax payer owned non-commercial" station could justify commercial sensitivity. He also disputed the fairness of the Authority's process. Moreover, because the Society intended to take its case back to the Ombudsman, Dr Grueber contended that the Society was unable to make a final submission at this stage.

In response, the Authority observes that RNZ, while not a commercial radio station in the traditional sense, is a major participant in the radio market in New Zealand where issues of commercial confidentiality involving the supply of services are vitally important in its dealings with its competitors. As for the second point, the Authority points out that it has complied with the requirements of the legislation under which it operates.

Having read the material supplied by RNZ, the Authority reiterates the point made in its 5 February letter to the Society that it considers that the material supplied pursuant to the Order substantiates RNZ's claim in regard to the balanced approach it adopted to the coverage of political parties in the months leading up to the 1996 election. When it reached that conclusion, the Authority sought the complainant's final comment. As the Green Society has declined to advance such comment, the Authority intends to proceed with its determination of these complaints.

In its determination, the Authority is taking care not to participate in hindsight analysis. It appreciates that RNZ, before the campaign started, had to develop some criteria to determine coverage of the greater number of parties taking part in the first MMP election. In view of the MMP system and the changing political affiliations of some MPs since 1994, it was reasonable to assume that the new, and larger, Parliament could well contain either representatives from a larger number of political parties than in the past and/or a larger number of representatives from the smaller parties previously represented in Parliament.

The Authority is of the opinion that the guidelines contained in RNZ's letters to the Authority and the material supplied in compliance with the Order issued under the Commissions of Inquiry Act, provide a process which deals with the realities and which also complies with its obligations in regard to balance. Furthermore, it was important that flexibility was retained during the campaign and RNZ's regular reviews have reassured the Authority on this point.

In conclusion, the Authority considers that RNZ's exclusion of the Green Society from the two items complained about did not constitute a breach given the range of parties contesting the election, and the support enjoyed by the party as measured in polls throughout the campaign.

For the reasons above, the Authority declines to uphold the complaints.

In the body of the decision, the Authority records its dissatisfaction at the length of time (some four months) which elapsed between the Authority's request to RNZ to comment on the referral, and RNZ's reply. Because of the other procedural issues involved with this complaint, the Authority does not intend to take this matter further. Nevertheless, it points out that it has the power in s.16(4) of the Act to impose costs on a broadcaster when a complaint is upheld, and that it signals that it may well use this power when a broadcaster, without good reason, does not respond promptly to a request from the Authority for information.

Signed for and on behalf of the Authority

Sam Maling
Chairperson
26 March 1998

Appendix

(i) Green Society's Complaint to Radio New Zealand Ltd – 1 June 1996
Dr Hans Grueber, Chairperson of the Green Society, complained to Radio New Zealand Ltd about an item on Morning Report on 17 May 1996 about "green" politics. The five minute broadcast, he said, had included speakers for the (old) Green Party within Alliance, and the Progressive Greens. Although a political scientist had spoken of three "green" parties, Dr Grueber said the Green Society had not been named at any stage.

Recalling that he had later spoken to a presenter of Morning Report, Dr Grueber said that RNZ continued, in breach of s.4(1)(d) of the Broadcasting Act 1989, not to acknowledge the Green Society.

Dr Grueber argued that the Green Society could "rightfully claim" to be the only "green" party at the forthcoming election as the old Green Party which had joined the Alliance, would not be on the ballot paper, and "the Progressives are not 'green'". Observing that the instance complained about was not the only example of National Radio ignoring the Society, Dr Grueber said that the impression given was incorrect in suggesting that there were only two "green" political parties in New Zealand.

(ii) Green Society's Complaint to Radio New Zealand Ltd – 11 July 1996

As evidence of the general point made in the Green Society's complaint about Morning Report on 17 May, Dr Grueber complained about the Checkpoint item broadcast on 9 July 1996.

The item had dealt with the Labour Party's release of its environmental policies and its quest for the "green vote". An interview with Labour MP John Blincoe was followed by one with the Alliance MP Sandra Lee. That was followed by Rob Fenwick of the Progressive Greens and, Dr Grueber considered, it was another example of unbalanced reporting. He wrote:

The Green Society again didn't get a chance. We were only once mentioned at the end of the item when she [the reporter] talked about confusing the voter.

RNZ's Response to the Formal Complaints – 25 September 1996

RNZ began its report with some background material. It noted that the Green Society was a registered political party with no association with any other party but it had yet to show in the polls as a political force. Accordingly, as it was unlikely to reach the 5% threshold for political representation, it could not be regarded as a significant party.

In view of the impending general election, RNZ explained that significance and news value were the criteria it used in deciding whether to report an item. It included a list of guidelines which it applied when assessing whether any specific item met the criteria. With regard to the smaller parties, the guidelines stated:

Under MMP the significance of minor parties is to be seen as greater than it was or could be under the former FPP political system. However, something of the opposite must also be considered, and that is the large and sudden increase in the number of parties which are contenders or would-be contenders in New Zealand's first MMP election. This must indeed impose very real limitations on a news and current affairs service working under inflexible time constraints.

RNZ also stated:

Finally, the [Complaints] Committee noted that the Green Society had not figured in the Electoral Commission's impartial assessments of significance.

Against this background, RNZ declined to uphold the complaints. It added that staff preference or opinion had no place in the professional news service operated by RNZ.

In a letter to the Green Society dated 3 October 1996 in response to a telephone inquiry, RNZ advised that the comment about the Green Society's lack of association with any other party was intended to make the point that: ...

to the best of the Committee's knowledge, the assessment of the political significance of the Green Society should not exclude as a factor the lack of heed paid to it by, and its effective lack of influence on, other political parties. This point relates to the news value of Green Society matters, and is not to be interpreted as in any way a Complaints Committee assessment of Green Society policies as such.

Green Society's Referral to the Broadcasting Standards Authority – 8 October 1996

Dissatisfied with RNZ's response, Dr Grueber on the Society's behalf referred both complaints to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.

He said that he wanted to draw attention to two specific points. First, unlike the Progressive Greens, the Green Society did not support the National Party. Consequently, its views on an issue were significant whereas those from the Progressive Greens were the same or similar to the National government. Thus, RNZ should report the Green Society's views, and not those of the Progressive Greens, when covering green issues. Secondly, RNZ's definition that "significant" meant the support of at least 5% of voters was too narrow and contrary to the Broadcasting Act 1989. Democracy, he continued, meant, in addition to majority rule, the opportunity to change. Explaining that the Authority had the opportunity to give a definitive interpretation of the phrase "significant" points of view", Dr Grueber wrote:

The task of the journalists in assessing the significance of a point of view is therefore not as easy as looking at opinion polls. We like to think that it can be expected to make a reasonable effort to look at the point of view itself to assess its significance. If the broadcaster would have fulfilled this obligation the Green Society wouldn't have been heard on every green issue.

RNZ's Response to the Authority – 18 February 1997

RNZ apologised for the delay in providing a response. It explained that the number of formal complaints had increased and that the legislation required that a response to them be made within 20 working days. RNZ also pointed out that The Radio Network (formerly RNZ Commercial) had recently taken over the responsibility for handling the complaints which referred to broadcasts by its stations. The pressure of complaints was thus expected to decline

In dealing with the matters raised in the referral from the Green Society, RNZ stated that its applicable principles were covered in its 25 September letter to the Society. However two further pieces of information supported those principles.

First, it enclosed the election results which recorded that the Green Society received 0.05% of the election votes and 0.12% of the party votes. Secondly, it referred to the Authority's decisions on complaints from the New Zealand Conservative Party about the small coverage it received from TVNZ when compared with the other political parties (Nos: 1996-161 and 1996-162, dated 21.11.96). RNZ wrote:

While the matters the Authority deals with in those decisions are not an exact parallel, the Company believes that they are sufficiently relevant to warrant comparison with the present complaint. As the original decision attempted to outline, Radio New Zealand developed and applied a set of evaluation-for-news- value principles not dissimilar from Television New Zealand's. It is evident that both that company and RNZ clearly recognised that the escalation brought about by the sudden advent of MMP in the number of smaller political parties demanded a different but validly based approach.

RNZ then explained the on-going internal process carried out to examine the coverage accorded each of the 30 political parties at election time, and concluded:

The Company does not circulate or publish the specific results of this ongoing research, but the process was seen by all involved as fair and leading to a good understanding of how the Company was covering the various parties. The end result was considered by the Company to confirm that the Company's standards and Statutory Standards had been met.

Further Correspondence

On receipt of a copy of RNZ's response to the Authority, Dr Grueber of the Society (in a letter dated 1 March 1997) sought a copy of the decision cited by RNZ and a copy of RNZ's running record of the number of mentions of the Green Party, the Progressive Greens and the Green Society.

The second request was forwarded to RNZ which advised (5 March 1997) that the review documents were confidential and would not be released for reasons for commercial sensitivity.

On the Society's behalf, in a letter to the Authority dated 21 March 1997, Dr Grueber disputed RNZ's claim that it was unable to release the information requested on the grounds of commercial sensitivity, adding:

RNZ claims that the fact of regular review documentation is an indication that it did not take an arbitrary approach to the matter. If that would be true then what does RNZ have to hide.

Dr Grueber maintained that RNZ's set formula excluded the Green Society as the only real "green" alternative. He argued that the Authority was unable on the grounds of natural justice to determine the complaint without access to the papers. He sought the Authority's assistance in obtaining the information, advising that the Society would make its final comment on the matter when that information was available. Dr Grueber then referred his request that RNZ's decision be overturned to the Ombudsman. The subsequent correspondence is dealt with in the body of the decision.